Decision
Mr. A and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-148318-M6W2F6
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr. A and Health Service Executive [2024] IEIC 148318 (04 September 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/148318.html
Cite as: [2024] IEIC 148318
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Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to certain statistical Hospital patient information on the ground that no further relevant records containing the information sought exist
3 September 2024
On 17 October 2023, the applicant submitted a request to the Heath Protection Surveillance Centre (HPSC) for details of "% of those on ventilators who died 2015-present" and "% of all hospital admissions which are caused by adverse drug reactions 2015- present". He submitted the request by email to the email address of a HPSC staff member, who he stated had primarily liaised with him in relation to previous FOI requests he had submitted. On 19 November 2023, he sought an internal review of the deemed refusal of his request by email to the same email address.
On 11 December 2023, the applicant applied to this Office for a review of the refusal of his request as the HPSC had not issued a decision on the request. In correspondence with this Office, the HPSC said its position was that the applicant had not submitted an FOI request through the proper channels, and therefore the HPSC had not treated the applicant's emails as an FOI request. It also said that the applicant had corresponded directly with a staff member, even though the HPSC had advised him that such requests must be made to a dedicated FOI address. In response to this, the applicant said he was unable to find a dedicated email address for FOI, and pointed to the fact that the HSE's website directs applicants to submit their request to "the most appropriate person". He said that in this case, he deemed he had followed this instruction by emailing his request directly to a staff member.
Following further engagements, this Office requested that the HSE forward the applicant's request to the relevant HSE unit, in order for it to be dealt with appropriately. The General Manager in the Office of the National Director of Acute Operations assumed responsibility for the case, and liaised with the Hospital In-Patient Enquiry system (HIPE), to ascertain if the applicant's request could be met.
On 28 March 2024, the HSE issued its effective position on the request, wherein it part-granted the request. It provided an excel sheet with data pertaining to Part 1 of the request for the years 2015 to 2022. It said the HIPE system is a health information system and is designed to collect clinical and administrative data on discharges from, and deaths in, acute public hospitals in Ireland. It said HIPE discharges are clinically coded from charts in the hospitals, which includes translating medical terminology into alpha-numeric code and using the entire chart to extract the conditions and procedures to create an adequate picture of the patient's health care encounter. It said HIPE can identify when a patient has died in hospital but is a morbidity database and does not collect cause of death, nor can it identify whether the patient was on a ventilator at the time of death. It said, therefore, that the data provided is representative of episodes of care during which a patient was on a ventilator at one point and is not representative of those patients who were on a ventilator at the time of death. It refused access to data for 2023 under section 15(1)(a) of the Act on the ground that the data for that year was not yet fully coded and was unavailable for release.
The HSE refused part 2 of the request under section 15(1)(a) of the Act on the ground that no relevant records exist. It said HIPE collects codes to identify patients where an adverse drug reaction is coded but that these codes do not identify whether the adverse drug reaction was the cause of admission. On 16 April 2024 the applicant applied to this Office for a review of the HSE's decision. He said the information the HSE had provided was not what he had requested.
During the course of this review, the Investigating Officer provided the applicant with details of the HSE's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further relevant records exist. While the applicant was invited to make submissions on the matter, no further response has been received to date.
Accordingly, 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 outlined above and to the submissions made by the HSE during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records containing the information sought by the applicant on the basis that no further relevant records exist.
It is important to note at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. "Reasonable steps" are defined as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the public body.
Accordingly, the question I must consider is whether the HSE was justified in refusing access to any further records that contain the information the applicant sought in his request on the ground that it holds no such records and cannot search for and extract the electronically held records by taking reasonable steps.
Section 15(1)(a) of the FOI 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. 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 their decision and also must assess the adequacy of the searches conducted by the public 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 noted above, the HSE provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
By way of context, the HSE explained again that the HIPE system is the principal source of national data on discharges from, and deaths in, acute hospitals in Ireland. It said HIPE collects information abstracted from medical charts or records and coded by trained clinical coders in line with national and international coding guidelines before entering into the HIPE Portal. It said HIPE data is exported from acute hospitals to the Health Pricing Office (HPO) central database. It said it is understood that no other electronic system would record this information, nor would this information be recorded in any other way at a national or centralised level.
In its submissions to this Office, the HSE said that any relevant records it holds relating to the first part of the applicant's request have been granted in the form of the excel sheet released. The spreadsheet contains details, for the years 2015 to 2022, of the number of discharges from acute public hospitals reporting to HIPE "with any listed procedure from ACHI Block 569 Ventilatory Support, by discharge code". The numbers (and associated percentages) are broken down into two columns, under the headings "Discharge Code - Died" and "Discharge Code - Other".
The HSE said it liaised with HIPE in order to ascertain whether any records existed relating to the applicant's request. It said HIPE informed it that the coding team and the Head of Data Analytics were among those consulted regarding the applicant's request. HIPE said that as 2022 is the latest closed file it could only provide information up to the end of that year i.e. 2015 - 2022. It said it could provide the overall number of episodes of care with any listed diagnosis from the Ventilatory Support Block. It said it could also provide the number of cases where the patient died during the episode of care. However, crucially, HIPE said that whilst it can identify when a patient has died in hospital, it is a morbidity database and does not collect cause of death. Consequently, HIPE cannot identify whether a patient was on a ventilator at the time of death.
The HSE said that the excel record which had been released to the applicant was the only record it held which met the criteria set out in Part 1 of the applicant's request. It said the excel document released showcased the total number of patients who were on ventilators in acute hospitals during the years 2015 to 2022. It said this table also showcased the portion of those patients who died while in hospital. However, it reiterated that HIPE does not record the cause of death, and the data held by HIPE does not record whether a patient was on a ventilator at the time of death. Therefore, the HSE's position is that the excel document is the only record it holds in relation to part 1 of the applicant's request. It said it is not possible to extract the precise information sought as HIPE does not record this information at any point.
In relation to part 2 of the request, the HSE said no relevant records containing the information sought exist. It said it liaised with the head of Data Analytics in the HPO, which oversees the HIPE system. It said the head of Data Analytics advised that it was not possible for the HPO to provide the information sought in part 2 of the request because the information is not explicitly recorded on the HIPE system and subsequently cannot accurately be inferred from the information that is recorded on the HIPE record.
The HSE said the HPO coding team explained that HIPE collected codes to identify patients where an adverse drug reaction is coded. However, it said these codes do not identify whether the adverse drug reaction was the cause of the admission. It said HIPE collects a principal diagnosis and up to 29 additional diagnoses per episode of care. The HPO explained that usually the cause of admission for a patient can be identified by looking at the principal diagnosis, as this is the diagnosis which is determined to be chiefly responsible for leading to the episode of care. However, it explained that when an adverse drug reaction is being coded to HIPE, the manifestations are coded first, followed by the codes to identify an adverse reaction. Therefore, the adverse drug reaction is never listed as the principal diagnosis. In other words, the HSE holds no data which can identify whether a hospital admission was caused by an adverse drug reaction- as adverse drug reactions are never listed as the principal diagnosis.
The HSE explained that as the number and type of manifestations may vary, HIPE cannot categorically state that an admission is caused by an adverse drug reaction. It said this is because it cannot separate those patients who came in due to an adverse drug reaction from those patients who had a different reason for admission but also had an adverse drug reaction at some point.
The HSE confirmed that data analytics staff in HIPE searched the HIPE database to determine if there was a way to extract this information from HIPE in order to grant the applicant's request and it concluded that there is no way to retrieve this information as the data recorded does not allow for it. It said data analysis staff are highly experienced and competent in translating HIPE data coding and conducting searches accordingly. However, as the data requested is not explicitly recorded on HIPE, nor can it be inferred from the data which is recorded, the HSE's position is that that no relevant records exist.
Having regard to the details of the HSE's submissions, and in the absence of any evidence to the contrary, I am satisfied that the HSE has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records exist. In the circumstances, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records on the ground that no such records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse access, under section 15(1)(a) of the Act, to further records containing the information sought by the applicant in his request on the ground that no further relevant records exist.
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