Whether the NTPF was justified in (i) refusing access to further records of correspondence between it, the Mater Hospital and the Department of Health relating to the applicant on the grounds that no further records could be found or exist, and (ii) redacting a name on the grounds that it is personal information belonging to a third party

26 May 2022

Background

In a request dated 7 May 2021, the applicant sought access to copies of all records of, and relating to, all contact between the NTPF and both the Mater Misericordiae University Hospital (the Hospital) and the Department of Health (the Department) from 1 June 2016 to the date of his request in so far as they concern or relate to him, or in which he is mentioned.

On 14 July 2021, the NTPF released four records to the applicant, with the name of a staff member of a service provider redacted from one of the records under section 37(1) of the Act. On 20 July 2021, the applicant sought an internal review of the NTPF's decision. Among other things, he said he was aware of the existence of other records not mentioned in the schedule of records and he referred to a number of letters he had sent to the NTPF. He also said that some of the records contained abbreviations and numeric and alphabetical codes which he did not understand.

On 19 August 2021, the NTPF issued its internal review decision wherein it affirmed the original decision. In response to the applicant's assertion that other relevant records exist, the NTPF said it was aware of other records relating to him not included in the decision but that it considered these records to fall outside the scope of the request as they did not comprise records relating to contacts between the NTPF and the Hospital or the Department. It offered to locate those records for the applicant should he wish. It also provided the applicant with a table providing descriptions of codes and abbreviations used in the records previously released to him.

On 16 February 2022, the applicant applied to this Office for a review of the NTPF's decision. In his application he argued that the redacted information should be released. He said that he never sought and was unaware of a transfer in his care from the Hospital to a named private hospital. He suggested that further relevant records exist.

During the course of the review, the Investigating Officer provided the applicant with details of the NTPF's submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist or could be found, and invited him to make a submission on the matter. The applicant responded on 23 May 2022.

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 correspondence between the NTPF and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

It is the NTPF's position that no further relevant records exist or can be found. This is, in essence, a refusal of the applicant's request for further relevant records under section 15(1)(a) of the Act. Accordingly, this review is concerned with whether the NTPF was justified in refusing access, under section 15(1)(a), to further records of correspondence between it and the Hospital or the Department relating to the applicant on the grounds that no further records could be found or exist and whether it was justified in redacting, under section 37(1), the name of a third party form one of the records released on the ground that it comprises personal information relating to that third party.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the NTPF provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no further relevant records exist or could be found. As the applicant has already been provided with the details of the NTPF's submission, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

By way of background, the NTPF explained it is tasked with commissioning treatment for the longest waiting patients on the Inpatient Daycase (the -�IPDC-�) and Outpatient (-�OP-�) Waiting Lists. The NTPF has a Panel of private hospital providers who tender prices and capacity for high volume procedures and full packages of care. Every week, each public hospital transfers an extract from their IPDC and OP Waiting Lists to the Information Communications and Technology (-�ICT-�) Reports Team at the NTPF. The ICT Reports Team then compile this information into two reports, the IPDC Weekly Comparison Report and the OP Weekly Comparison Report. Following receipt of the weekly reports, the Commissioning Team rank the highest volume procedures against the available private hospital capacity.

Once the ranking of procedures is completed, orders for the capacity are sent to the winning private hospital providers. Once these orders are accepted and returned signed, the Commissioning Team then issue Case Authorisation Numbers (CANs) in chronological order starting with the longest waiting patient to match the capacity to the relevant public hospitals. It outlined that IPDC patients are contacted directly by the public hospital who inform them of the offer. If the patients accept the offer of outsourcing, they are asked to give their consent for their data to be transferred to the private hospital.

The NTPF explained that the applicant was on a long-term waiting list for treatment in the Mater Hospital. It said that on 1 February 2018, a CAN was issued by the NTPF in order for him to receive his treatment at a private hospital. However, the CAN was not used and the NTPF did not pay for any treatment relating to the applicant as the applicant was treated in the Mater Hospital.

The NTPF explained that it circulated the applicant's FOI request to the NTPF Executive Team (comprising of the Chief Executive and the Directors of Finance, Process Innovation, Audit & Quality Assurance, Corporate Services and ICT), the CEO's PA and the Head of Commissioning requesting access to records.

As a patient in the Mater Hospital, the NTPF considered it possible that the applicant would be on the Mater's waiting lists. Accordingly, NTPF ICT staff conducted a search of waiting list data using his name and different variations to account for any misspelling to ensure all relevant records were located. No additional records were found using these additional search terms.

A search was undertaken on the Commissioning shared folder which contains all of the historic records of CANs issued. The search was carried out using the applicant's name and address. This file indicated that the patient had been issued a CAN however this had not been utilised as it had been marked -�Patient Treated in-house-� by the referring hospital. A search was then undertaken on the Patient Access Management System (-�PAMS-�) which is the electronic database which holds all of the patient records since May 2019. Records were identified and were provided to the applicant.

The Corporate Services Director conducted a search of all corporate services folders using the applicant's name and address. He also searched, in his capacity as Secretary to the Board, all Board folders and correspondence using the applicant's name and address. The PA to the CEO also conducted a similar search of their records.

I note that when the Investigating Officer provided the applicant with details of the searches undertaken by the NTPF in this case, the applicant's response related solely to the NTPF's decision to redact information from one of the records released. He made no comment on the adequacy of the searches undertaken, nor did he provide any evidence to support a contention that further relevant records should exist.

In the circumstances, and having regard to the details of the NTPF's submissions and to its explanation of its' role regarding the applicant's medical care and the type of records which would normally be created in carrying out its functions, I find that it has taken all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the NTPF was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records on the ground that no such records exist or can be found.

Section 37(1)

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual".

Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not exclude the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. Individual staff members are still entitled to the right to privacy generally.

The NTPF has redacted a name from record 2. The NTPF said that the redacted name is the name of a member of staff of an external IT service provider who assisted in the migration of old files to the PAMS system in 2019, when the PAMS system came into operation. It explained that as the IT Contractor transferred the record in question to the PAMS system, their name was included on the record when it was initially transferred to the PAMS system and thus, was included on the record returned in the search. I am of the opinion that the exclusion at paragraph II applies to the relevant service provider, not the individual staff member whose name is recorded on the record. I therefore find that the exclusion does not apply and that the name is personal information within the meaning of the Act. I am also satisfied that none of the exceptions set out in section 37(2) applies and that the public interest in releasing the name does not outweigh the privacy rights of the individual concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTPF's decision to refuse access to further records under section 15(1)(a) and to redact a name of an individual under section 37 of the 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.

Stephen Rafferty
Senior Investigator