Whether the HSE was justified in refusing access to Stenographer records under section 15(1)(a) of the FOI Act and draft copies of a System Analysis Review report relating to an investigation under sections 30(1)(a) and 30(1)(b) of the FOI Act

1 September 2023

Background

In a request dated 24 March 2022, the applicant submitted a request to the HSE for access to a range of records relating to relating to the medical care of her daughter at University Hospital Limerick (UHL) who sadly passed away following surgery. Among other things, she sought access to all stenographer records taken prior to and during a System Analysis Review (SAR) and draft copies of the SAR reports generated during the SAR investigation carried out as a result of her daughter-�s death. This review is concerned only with those records.

In a decision dated 5 May 2022, the HSE refused access, under section 15(1)(a) of the Act, to the stenographer records sought on the ground that no relevant records could be found. It said -�[a] request for a copy of the stenographer records was sent to -� [the] Chair of the Review Team -� however the request was denied and the hospital does not hold these records.-� It refused access to draft copies of the SAR report under sections 30(1)(a) and 30(1)(b) of the Act. In doing so, it noted that a copy of the final report had been released to the applicant.

On 22 July 2022, the applicant sought an internal review of the HSE-�s decisions following which the HSE affirmed its refusal of the relevant parts of the request. On 30 November 2022, the applicant applied to this Office for a review of the HSEs decisions.

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 by the applicant and by the HSE. I have also had regard to the contents of a number of relevant records that were forwarded to this office for the purpose of conducting the review. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with whether the HSE was justified in its decision to refuse the applicant-�s request for copies of the stenographer records taken prior to and during the SAR relating to her daughter and to refuse access to draft copies of the SAR reports generated during the SAR investigation, under sections 30(1)(a) and 30(1)(b).

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the HSE to satisfy the Commissioner that its decision to refuse access to the records sought was justified. However, that is not the end of the matter. I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

The Stenographer Records

As I have outlined above, the HSE refused access to the stenographer records sought under section 15(1)(a) of the Act. That section 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. Our role 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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.

In its submissions, the HSE explained that the purpose of the SAR review was to establish the facts relating to a patient-�s clinical care including any deficits. It said the review sought to identify the key causal factors that contributed to the patient-�s death and to identify the underlying causes of these events so that by addressing them, care to future patients could be improved. It said the review was carried out by a team commissioned initially by the Hospital Chief Clinical Director and later by the Hospital Group CEO. It said that under the HSE Incident Management Framework (IMF), the review team are external to and independent of the hospital group. It said that as is usual for these reviews, a local member of staff is involved for administrative matters and coordination, and that in this case, the Group Lead for Quality & Safety was a member of the review team. It said the review team commenced work on 8 June 2018 and submitted a final report to the commissioner of the review on 11 October 2019. Following completion of the review, the review team disbanded.

On the matter of the searches undertaken for the stenographer records sought, the HSE explained that a stenographer was used by the external review team to transcribe interviews the review team held with staff involved in the care of the patient. It said stenographer records would be subject to a strict duty of confidentiality to ensure that persons who participate in reviews into patient care and serious incidents are able to participate freely in those reviews. It said searches for the stenographer records were conducted in the following offices which are the only areas where it could expect the records could be found:

• Chief Executive Officer-�s office
• Office of the Chief Clinical director
• Head of the Quality and Safety Department
• Patient Advocacy Liaison Service

The HSE said that within these offices, searches were conducted in all relevant locations and no records were located. It sad searches were carried out using keywords -�Stenographer notes-�, -�Stenographer transcripts-�, -�draft report NIMS [Number removed]-� and the name and initials of the applicant-�s daughter. It said a search was also conducted by the hospital-�s ICT department of the following email accounts to ensure a thorough search for the stenographer records was undertaken;

• CEO
• Chief Clinical Director (at the time of the review)
• Quality and Patient Safety (QPS) Manager
• Line Manager of the QPS Manager

It said that the searches were carried out using the same set of keywords as above and no records were found. It added that for completeness, a request for a copy of the stenographer records was sent to the (External) Chair of the Review by UHL and that the request was denied as a copy of the records was not retained by the Chair. It said the Group Lead for Quality & Safety was also asked and did not have a copy of the records.

The HSE said the applicant queried the retention period of records created under the IMF, under which documentation and information is retained for 7 years. It said the applicant was informed that the records ought to have been retained for 7 years but that they could not be located after searches. It said there is nowhere else the stenographer records might reasonably be found, and that consideration had been given to whether it may have been misfiled.

Following receipt of the HSE-�s submissions, the Investigator informed the applicant of the details of the searches undertaken and offered the applicant an opportunity to make further submissions. In response, the applicant noted that according to the HSE IMF, the HSE has to retain all records surrounding an investigation in a locked press. She asked if this Office could enquire as to who the stenographer was and if that person could be contacted to ask for a copy of the records. She said there were 16 witnesses that she knows of so there would have been at least 16 stenographer records, but she believes there were more because a lot of people met with the review team that were not considered witnesses later in the investigation. She said she found it difficult to accept that no relevant records can be found. She also noted the HSE-�s original decision wherein the HSE said the Chair of the review team refused to provide copies of the stenographer records.

The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. This Office may conclude that an FOI body has taken all reasonable steps to locate relevant records even where records were known to have existed but cannot be found. The Act does not require an FOI body to continue searching indefinitely for records that cannot be found.

The HSE accepts that the stenographer records sought did, at one time, exist. Its position is that they cannot be found. In considering whether an FOI body was justified in refusing a request under section 15(1)(a) on the ground that the records sought cannot be found, the question I must consider is whether the FOI body has taken all reasonable steps to locate the records sought. In this case, I am not satisfied that it has.

It seems to me that the HSE did not take sufficient steps to establish what might have happened to the records in light of the procedures outlined in the IMF relating to the conduct of reviews. The IMF provides that all commissioned reviews require the establishment and maintenance of systems for the management of documentation and information relevant to, or created as part of, the review. It provides that the recommended timescale for retention of documentation and information is seven years. Moreover, it appears that when a review is completed, records should be returned to the commissioner of the review. I note, for example, that in it submissions to this Office, the HSE said -�In line with the HSE Incident Management Framework,the commissioner of the reviewstores records arising from the review for the relevant statutory limitation period following dissolution of the review team-� (my emphasis).

It would appear that the HSE searched for the records in the locations it would expect to find such records had they been returned to the commissioner of the Review in accordance with the provisions of the IMF. However, this raises the question as to where the records might be held if, as appears likely in this case, the records were not returned to the commissioner following the review. On this point, the HSE said the Chair of the Review did not retain copies of the stenographer records and that the Group Lead for Quality & Safety did not hold copies. However, it is not apparent to me that the HSE made any further efforts to establish what steps the review team took to ensure compliance with the IMF provisions in relation to its retention and return of relevant records and what might have happened to the stenographer records. Such efforts may reasonably have included making relevant enquiries of the Chair and, perhaps, all of the other members of the review team, as to what records were retained and where, and what records were destroyed, if any.

In the circumstances, I am not satisfied that the HSE took all reasonable steps to locate the stenographer records sought. Accordingly, I find that the HSE was not justified in refusing the applicant-�s request for the stenographer records under section 15(1)(a) of the Act.

The Draft SAR Reports

In its submissions of 28 March 2023 to this Office, the HSE put forward a preliminary argument that for the purposes of the FOI Act, it does not -�hold-� the draft copies of the SAR report. It said the drafts were created for use only by the independent review team, and as part of a confidential process which results in the production of a final report which was released to the applicant. It said draft SAR reports were created for use only by the independent review team, and as part of a confidential process which results in the production of a final report which was released to the applicant. It said they contain information which by its very nature has not undergone a necessary process of fair procedures and constitutional justice to ensure that the rights of individuals involved / being interviewed are not contravened by the premature publication of material which comments adversely on them. It said that in line with the HSE Incident Management Framework, the commissioner of the review stores records arising from the review for the relevant statutory limitation period following dissolution of the review team. It said that while the records are consigned to the commissioner for safe-keeping following the dissolution of the review team, they are not records the contents of which the UHL is entitled to access for the purposes of release under the FOI Act.

Section 11(1) of the Act provides for a right of access to any record held by an FOI body. While the Act does not define -�held-�, it is well settled that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. 

The Supreme Court considered the meaning of -�held-� for the purposes of the Act in Minister for Health v Information Commissioner [2019] IESC 40 (commonly known as the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, former High Court judge Justice T.C. Smyth, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda.

Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.

In her judgment in the case, Finlay Geoghegan J. found that for a record to be held within the meaning of the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997), the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

The HSE has not, in my view, adequately explained why it considers that it is not in lawful possession of the draft reports, or that it is not in such possession in connection with, or for the purpose of, its business or functions, or that it is not entitled to access the information in the records. It appears that the HSE-�s argument that it does not hold the relevant records for the purposes of the Act is based on an argument that the review team is independent in the performance of its functions. I note that the IMF provides that the review of incidents should not be led or facilitated by a person who was directly involved in the incident -�as this may introduce bias and represent either a real or perceived conflict of interest-�. It also provides that -�the review team should, where possible, be convened from within the level of the organisation within which the incident occurred-�. While I accept that the IMF seeks to ensure a certain level of independence in the review of incidents and that the majority of the members of the team that conducted the review at issue in this case were -�external to and independent of the hospital group-�, this does not, in my view, mean the review team is wholly independent of the HSE and that records held by the review team cannot be deemed to be held by the HSE. In my view, the circumstances arising in this case are entirely distinguishable from those arising in the Drogheda Review case.

The review at issue in this case was initially commissioned by the Hospital Chief Clinical Director and later by the Hospital Group CEO. According to its Terms of Reference, the review was commissioned to:

• establish the factual circumstances surrounding the patient-�s care,
• identify any deficits in care,
• outline key casual or contributory factors, and
• recommend actions that will address the contributory factors so that the risk of future harm arising from these factors is eliminated or, if this is impossible, is reduced as far as is reasonably practicable.

I am satisfied that any records held by the HSE in connection with the review are lawfully held by the HSE in connection with, or for the purpose of, its business or functions and that the HSE is entitled to access the information in the record. In any event, as the HSE subsequently provided copies of a number of the relevant draft reports to this Office for the purposes of our review and in light of my findings below as to the applicability of the exemptions coted in support of the refusal of access to the records, it seems to me that the HSE-�s argument is now moot. Accordingly, I do not consider it necessary to make a definitive finding on the HSE-�s preliminary argument.

I also note that while the HSE indicated that it had managed to locate 41 relevant drafts, it said it was unable to access the vast majority of the drafts as they were password protected and it did not have access to the passwords in question.  It said it was not in a position to retrieve the passwords from the review team which has since disbanded. It did, however, provide passwords for a number of relevant drafts. It said the drafts that could be opened are indicative of the rest of the drafts and that each draft would follow the same template. We deemed the level of access provided to be sufficient to allow us to examine the HSE-�s claims for exemption of all of the drafts. As I have outlined above, the HSE refused access to the draft reports under sections 31(1)(a) and 30(1)(b) of the Act.

Section 30(1)(a)

Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).

In its submissions, the HSE said that as with any review process, there may be many draft reports produced by the review team before they finalise a report following their validation process. It said it refused access to the draft reports as they are working documents of the review process that are subject to change as documents are provided and interviews are completed. It said that given the context in which these reviews are prepared and serious nature of the matters being dealt with, a fundamental part of this process includes strict adherence by a review team to the constitutional rights of fair procedures and natural justice of staff involved in the review process. It said that in line with the IMF, staff are afforded an opportunity to review the accuracy of draft reports as they relate to them, in order to ensure that the report accurately reflects their input, and in order that they have a right to see any comment which may be made which could be adverse to them. It said this is both a legal requirement and ensures accuracy in the process. It said that draft reports prior to the final report have not been through this full process and therefore may contain information which may inaccurately reflect what a person said, or which make adverse comments about individuals which were appropriately removed from the document following feedback. It said UHL is not the review team and is not in a position to determine what was removed as part of a fair procedure process by the review team. It said information relating to individuals which was removed or altered following an engagement with that person prior to a final report is by its very nature confidential and must be kept so.  It said the important of confidentiality in the systems analysis review process was recently recognised by the High Court inO-�Keeffe & Doran v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin.

The HSE added that the importance of these protections is reflected throughout the review process including confidentiality, anonymisation/pseudonymisation of individuals, and destruction of draft reports which have not been circulated beyond the review team. It said the hospital does not hold an inventory of which of the drafts were not circulated beyond the members of the review team nor those that were circulated outside of the review team. It argued that release of the information in question would prejudice the carrying out of other similar reviews in other cases where persons would be unwilling to participate if they were of the view that such information might be released in draft form. It said the HSE (UL Hospitals Group in this case) is reliant on the willingness of its staff to fully engage in the incident review process, which is a vital process in ensuring lessons are learned in relation to patient safety. It said there is a risk of reduced participation for further reviews if invalidated information is being released which could be misconstrued or be used out of context. It said that to disclose a document which by its very nature has not undergone the process of fair procedures and constitutional justice would contravene the legal rights of the people involved. It said it is reasonable to conclude that the harm referred to would occur having regard to the nature of these reviews, the confidentiality attaching to them, their importance to the hospital and patients, and the circumstances in which persons engage with these processes, including the requirements of fair procedures and constitutional justice as set out in detail above.

The Terms of Reference of the Review in question in this case provides, among other things, that the process adopted for the review must demonstrate that it adheres to the principles of natural justice, fair procedures, and data protection requirements. It provides that all participants in the investigation will have an opportunity to give input to the extracts from the report relevant to them to ensure that they are factually accurate and fair from their perspective. It says the Independent review team will prepare and present to the commissioner an anonymised Report giving details of the chronology, an analysis of the issues, including key causal and contributory factors and learning points and recommendations. It further says that -�The review will be aligned to the methodology of the HSE-�s Framework on the Management of Serious Incidents and will be cognisant of the rights of all involved to privacy and confidentiality, dignity and respect, due process and natural and constitutional justice and will follow fair procedures-�. I also note that, in relation to the pseudonymisation of the Review Report, the IMF stresses the importance of maintaining the confidentiality of the names of staff participating in the review process

The essence of the HSE-�s argument is that the release of draft reports that were prepared for the specific purpose of adherence to the principles of fair procedures and natural justice

as set out in its IMF could reasonably be expected to result in reduced participation by staff members, thereby affecting the effectiveness of the review process. I accept that argument. The HSE-�s review process is documented in considerable detail in its IMF. That framework provides that all reviews are required to be carried out in keeping with the principles of fair procedures and natural justice. It provides that the review approach must be applied in a systematic and structured way which looks beyond the particular incident and that to do this successfully, all those affected by the incident, i.e. service users, families and staff, must be confident that the process is applied in a supportive manner that is open and fair and follows the principles of fair procedures and natural justice. It provides that these principles must be seen to work in practice at all stages in the process i.e. from commissioning to the point at which the report is finalised. It provides that adherence to these principles requires, among other things:

• that staff members participating in or affected by the outcome of the review process will be provided with an opportunity to review the draft report,
• that staff members participating in or affected by the outcome of the review process are requested to provide feedback on issues of factual inaccuracy, and
• that any report arising from the review will be pseudo-anonymised to protect the identity of service users and staff.

The IMF also provides that feedback to staff and service users participating in the review process should be a graduated process where participants are provided with the entire report in the following order:

Where issues of criticism or implied criticism or where the findings of the review might be seen to adversely affect an individual employee are identified, that the employee:

1. be advised of these,
2. be provided with detail of the manner these are reflected in the draft report, and
3. be provided with an opportunity to refute the finding or to explain or mitigate the criticism.

Based on this feedback any required changes must be made to the draft report prior to circulation to other staff for factual accuracy checking by them. The person must receive feedback on all items raised by them in their feedback, along with reasons for the basis why these are accepted or rejected. A copy of the amended report should be provided to them with this feedback.

It seems to me that while staff members participating in a review would be fully aware of the fact that the final report following the review would be made available, they would have a legitimate expectation that earlier drafts of a report which were prepared to ensure adherence to the principles of fair procedures and natural justice would be treated as confidential. If staff had concerns that drafts of the final report might be released which may not accurately reflect their contribution or might impinge on their entitlement to fair procedures and natural justice, they could reasonably be expected to engage with the review with less candour and frankness than would be necessary to ensure the effectiveness of the review. It seems to me that adherence to the principles of fair procedures and natural justice is a fundamental feature of the review process. In the particular circumstances of the nature of the review at issue in this case, I am satisfied that the release of the draft reports sought could reasonably be expected to prejudice the effectiveness of that process. Accordingly, I find that section 30(1)(a) applies.

Section 30(2)

Section 30(2) of the Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned. In its submissions to this Office, the HSE identified a range of factors in favour of and against release of the records, as follows:

Factors in favour of release:

• the strong public interest in family/next-of-kin in being fully informed of the care and treatment a patient received prior to death and being fully informed of investigations into same
• the public interest in the public knowing how a public body performs its functions, in this case how the hospital reviews and responds to adverse incidents which occur
• the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate, in this instance that information held about the requester-�s daughter
• the public interest in members of the public exercising their rights under the FOI Acts

Factors against release:

• the public interest in protecting the right to privacy of patients in relation to their personal information
• the public interest in protecting the privacy of staff where the information in question is not excluded from the definition of personal information in the FOI Act
• the public interest in members of the staff members being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters arising during a review into patient safety
• the strong public interest in the hospital being able to effectively carry out reviews into incidents which occur in relation to patients and in persons engaging openly with such reviews in order to learn from those incidents
• the public interest in ensuring that documents that have not undergone a process of fair procedures and constitutional justice are not disclosed in contravention of the rights of individuals involved

The HSE concluded that the public interest would not, on balance, be better served by granting the request. It said that releasing the records would harm the ability to carry out similar reviews in the future. It said the ability to carry out these reviews with open participation by persons involved is a matter of importance both to the hospital but also to patients and the health sector more widely. It said the public interest in being informed about such reviews does not extend to inhibiting the ability to carry out those reviews. It also again noted that the applicant had been provided with the final copy of the draft SAR report.

I acknowledge that there is a significant public interest in family/next-of-kin being fully informed of the care and treatment a family member received prior to death and being fully informed of investigations into same and in knowing how incidents are reviewed and responded to. It seems to me, however, that this public interest is already served to a significant extent by the comprehensive review process in place in the HSE. In my view, there is a significant level of transparency around the review process and the review process itself serves to ensure that family members are kept informed of developments at various stages of the review process and that they receive a copy of the final report following the completion of the review. While I accept that the release of the draft reports would further enhance transparency around how the review in question was carried out, it seems to me that such additional transparency should not be at the expense of damaging the integrity of the review process itself. There is a strong public interest in ensuring the integrity of the review process, given its objectives, as set out in the IMF. As the HSE explained in its submissions, the review sought to identify the key causal factors that contributed to the patient-�s death and to identify the underlying causes of these events so that by addressing them, care to future patients could be improved. In circumstances where I have found that the release of the draft reports could reasonably be expected to prejudice the effectiveness of the review process, I find that the public interest would, on balance, be better served by refusing access to the draft reports. As such, I am satisfied that section 30(2) does not serve to disapply section 30(1)(a) in this case.

In conclusion, therefore, I find that the HSE was justified in refusing access, under section 30(1)(a) of the Act, to the draft reports sought. Having found section 30(1))(a) to apply, I do not need to go on to consider the applicability of section 30(1)(b) to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE-�s decision. While I find that it was justified in refusing access, under section 30(1)(a), to the draft copies of the SAR report, I find that it was not justified in refusing the request for the relevant stenographer records under section 15(1)(a). I annul that aspect of the HSE -�s decision and direct it to undertake a fresh consideration of 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