Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-151414-Q7M3D9
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Cite as: [2024] IEIC 151414
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Whether the HSE was justified, under sections 30, 35 and 37 of the FOI Act, in refusing access to transcripts of interviews carried out in the course of a Systems Analysis Review
17 December 2024
This case has as its background two previous reviews by this Office relating to an FOI request made by the applicant on 24 March 2022 for a range of records relating to relating to the medical care of her daughter who died following surgery at a HSE hospital. Among the records sought were the transcripts created by a stenographer of interviews with various staff that took place during a Systems Analysis Review (SAR). The original decision to refuse this part of the request under section 15(1)(a) was annulled and remitted back to the HSE by this Office on 1 September 2023 for a fresh decision (Case OIC-132780 refers). The HSE issued a fresh decision on 29 September 2023 which ultimately was also appealed to this Office. During that review, the HSE located copies of two draft transcripts that had been emailed by the stenography company to the Case Officer. In a decision dated 17 May 2024, while this Office affirmed the HSE's decision in respect of the broader question of whether the HSE was justified in refusing access to any further relevant records on the grounds that they did not exist or could not be found following the carrying out of reasonable searches, it also directed the HSE to make a new first-instance decision on the two transcripts located during the review process (Case OIC-143448 refers).
On 14 June 2024, the HSE wrote to the applicant stating that it was "extending" the FOI request by one month. It apologised but no reason was given for the failure to provide a decision within the statutory deadline. On 16 July 2024, it issued a decision in which it refused to release the records under sections 30(1)(a), 30(1)(b), 35(1) and 37(1) of the FOI Act. The applicant sought an internal review of this decision on 25 July 2024. Among the points raised, she queried the HSE's references to 'fact-checking' the transcripts when she understood them to be a verbatim record of the interviews and she said that she had no issue with witness names being redacted. She noted the reference to the "normal processes under the IMF [Incident Management Framework]" and said that it had already been established that such "normal" processes had not been adhered to. Ultimately, the applicant said that she wished to access the records in order to establish whether the SAR was carried out in an appropriate manner, with the review team abiding by due diligence and natural justice.
On 16 August 2024, the HSE affirmed the decision to refuse the records. It provided further information about the searches conducted for the stenography records and the processes involved. It said that while it had initially understood that the two records that were located during the previous review had been received in error by the Case Officer, it now appeared more likely that the records were received by the Case Officer to facilitate the fact-checking process. It said that on this basis it carried out a further set of searches, and in the course of these searches it located two further draft transcripts. It set out details of the various devices and hardware that was searched, its engagement with the IT department, and the impact of the 2017 cyber-attack on its servers. It said that it understood that the draft stenography records which were returned for fact-checking were returned primarily in paper format (which were held by the review team). However, it said that any transcripts that were returned by email would have been impacted by the hardware issues, cyber- attack etc. and that it was satisfied that no further records can be found beyond the now four transcripts that have been located. The HSE affirmed its decision to refuse the records that were found, including the two additional records, under sections 30(1)(a) and (b), 35(1) and 37(1). The applicant applied to this Office for a review of the HSE's decision on 21 August 2024.
During the review, the applicant wrote to this Office to say that she and her family had attended a meeting with the CEO of the HSE and that he had said that it should be possible to locate the outstanding records and that she was entitled to access them. The Investigator contacted the HSE to establish whether it had altered its position in respect of the records and was advised that the FOI request remained refused. The applicant provided a copy of the minutes of the meeting, prepared by the HSE, which includes an action that says the CEO "will try and get the records sought by the family and copy of the Stenographer records. If the records exist the family are entitled to have them".
In the circumstances, I have decided to conclude this review by way of a formal, binding decision which I have made 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 HSE and the applicant, to the correspondence between the parties as set out above, and to further communications between this Office and the parties, as well as to the decisions issued in the previous two reviews carried out by this Office. I have also considered the contents of the records at issue.
Before I address the substantive issue in this review, there are several matters I wish to comment on.
The background to the FOI request made by the applicant is the tragic and premature death of her daughter following surgery in a HSE hospital. Understandably, she wishes to know exactly what happened and to establish that the SAR that was conducted and the report that it produced accurately and fairly reflect the circumstances that led to her daughter's death, and as such has sought access to certain records. The applicant is well aware at this point that this Office has no role in investigating complaints, adjudicating on how FOI bodies perform their functions generally, or in acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Notwithstanding that, when it comes to my role in examining the HSE's processing and decision-making in respect of the FOI request, and its dealings with this Office during the now- three reviews that have been carried out, I cannot but conclude that the HSE's approach has been entirely unsatisfactory.
The Senior Investigator noted in the previous decision that the records management in this case was not in line with the HSE's own stated procedures and I acknowledge that the HSE has accepted this and made amendments to the precedent terms of reference for future SARs. Notwithstanding that, on the basis of the information provided by the HSE the Senior Investigator accepted that the hard copy stenography records had been inadvertently destroyed and affirmed the HSE's decision under section 15(1)(a) that no further records could be found. However, in the course of making a decision for the third time on this request, the HSE carried out further searches and found two more transcripts. While I appreciate that there are a number of complexities at play here, it seems to me that the situation has been exacerbated by the piecemeal and incomplete information provided by the HSE to this Office's Investigators in the course of the two previous cases. For example, it took until the third review for the impact of the cyber-attack in 2021 to be mentioned. It is only now at this point, following a third decision, and subsequent application for review, a further request for submissions and further clarifications over the phone, that it seems that a more complete picture of the situation with the stenography records has emerged.
As I now understand it, the situation is as follows: a stenographer was engaged to sit in on and transcribe verbatim what was said in the interviews held by the review team as part of the SAR. The transcripts were then provided to the interviewees for what the HSE referred to in its internal review decision as 'fact-checking' i.e. for the individuals to go through the transcript of their own interview and to make sure that what was captured reflects what they intended to say, and to add notes to explain further or add more context, and to correct any errors, for example where a specific medical term has been transcribed incorrectly. It seems that the majority of the interviewees received the transcript in hard copy, while a small number of interviewees (it has not been confirmed how many) were emailed a copy of the transcript for them to complete this 'fact-checking' process. In whatever manner they received it, it seems that the interviewees then annotated the relevant transcript in hard copy and returned it to the review team. The records destroyed by the chair of the review team, as described in the last review decision, included these annotated hard copy transcripts which the HSE now says were contained in white lever arch folders prepared for each member of the review team. As noted previously, no hard copy records were ever returned to the commissioner of the SAR, which the HSE has acknowledged was a breach of the IMF. It seems therefore that the only copies of the transcripts that could potentially be held by the HSE at this point are those unchecked copies that were emailed through the HSE systems to the interviewees from the stenographer. I will address the search issue below.
I acknowledge that the HSE in its submissions recognised some of the many problems arising in terms of its processing of the FOI request in this case and has said that it is committed to learning from complex FOI cases such as this one to ensure that future requests are dealt with in a more prompt and straight forward manner. I urge it to take all necessary steps to do so.
Given that two more records were found during this review, I considered whether I should reopen and re-examine the question of reasonable searches in the context of section 15(1)(a), and indeed whether to simply annul the decision again and to direct the HSE to carry out further searches. I decided, on balance, not to do so, for two reasons. Firstly, while I cannot say with any certainty that further focused searches would not lead to any additional transcripts being located, it seems to me that at this point unlikely that they would and I am not convinced that directing further speculative searches would serve a useful purpose. Secondly, and more importantly, it is vital that the applicant finally receives a review decision by this Office that addresses the substantive question as to whether the HSE was justified in refusing access to the records that it actually has found. These records are essentially a sample of the records sought, and it seems reasonable to assume that a decision made on these records would also most likely apply to the full set of records, if they were ever located. In these circumstances, I have confined the scope of the review to the four records that have been found and the HSE's decision to refuse them under the various exemptions claimed.
Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. A remitted case from this Office is essentially treated like a new request and a new decision must be made within four weeks. Section 14(1) of the FOI Act provides that an FOI body may extend that four-week period by up to four further weeks where it considers that:
a) the request relates to such number of records, or
b) the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such,
that compliance with section 13(1) within the four weeks specified is not reasonably possible.
As noted above, on 14 June 2024, the HSE wrote to the applicant stating that it was "extending" the FOI request by one month. No reason was given for the failure to provide a decision within the statutory deadline and no reference was made to section 14 of the FOI Act. From the circumstances of the case it would seem to me that neither section 14(1)(a) nor (b) apply. I would urge the HSE to ensure that its FOI decision-makers are familiar with the statutory deadlines and limited circumstances in which the time period can be extended.
In submissions to this Office, the applicant referred to a 2023 Court of Appeal decision in which a family was granted access to similar records to those sought by the applicant. The case is O'Keefe & Anor v Governor and Guardians of The Hospital for the Relief of The Poor Lying-In Women Dublin [2023] IECA 78.
While I acknowledge that the records sought are certainly similar, it is important to note that the case in question concerned a discovery order for the records sought by the family in question, who had taken proceedings against the relevant public body.
The courts have found that the release of records under FOI is very different to the discovery of records in a court case. In particular, they have found that release of records under FOI is effectively release to the world at large, as the FOI Act imposes no restrictions on the use of records released in this way. On the other hand, records which are subject to a discovery order are subject to an implied or express undertaking that they will only be used by the party receiving them for the purpose of the particular court case in which they are discovered. Therefore, the question of whether records would be discoverable in court proceedings does not have any bearing on whether a public body is justified in refusing access to the same records under FOI.
For completeness, and taking into account the applicant's meeting with the CEO of the HSE, I note that section 11(8) provides that nothing in the FOI Act shall be construed as preventing an FOI body from providing access to, or publishing, a record outside the FOI Act, apart from where such publication or access is prohibited by law. Nevertheless, the remit of this Office is confined to a consideration of whether the HSE body has appropriately applied the provisions of the FOI Act in its processing of the FOI request made.
This review is concerned solely with whether the HSE was justified in refusing access, under sections 30, 35 and 37 of the FOI Act, to the four draft stenography transcripts that have been found.
Section 30(1)(a) provides that an FOI request may be refused if the FOI body 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 this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The exemption is subject to a 'public interest override' i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.
Submissions
The HSE said that it expected that release of the records at issue would prejudice the conduct of investigations into patient safety incidents, including SARs, and the procedures/methods used for the conduct of such investigations. It said that individuals engage with these review processes in an open manner but with an expectation of a degree of confidentiality. It said that the information provided by them, once confirmed as factually accurate, is incorporated into the final report itself. It said that when the report is finalised, having gone through all the necessary processes, it is then issued to the affected parties. It said that the stenography records are not released externally at any stage during the process and nor is this provided for in the IMF. It said that the individuals who engage with the review processes would not expect that they would be released. It said that the final SAR report is pseudomymised, but that it would be impossible to do this to the stenography records in light of the detailed personal information that they contain.
The HSE said that the stenography records are working documents prepared by the stenographer engaged by the review team, that are then fact-checked prior to finalising. It said that releasing them prior to finalising them would prejudice the ability of the HSE to carry out future reviews and review methods by disclosing records which have not been fact-checked and which are not intended for circulation. It said that, given the context in which these reviews are prepared, and the serious nature of the matters being dealt with, adhering to fair procedures is a fundamental part of the process. It said that releasing draft records which have been identified for fact checking but not actually fact checked, would breach the rights of the person to whom the records refer. It said that the HSE was not in a position to identify what changes were deemed necessary and what was deemed inaccurate, as the review team's own records have been destroyed and the review team is no longer in being.
The HSE went on to say that release of the records would prejudice the carrying out of other reviews in the future because people would be less willing to participate if they were of the view that transcripts of their interviews, containing their personal information and which had not been fact-checked, or where fair procedures had not been afforded to them, would be released. It said that the HSE expects and is reliant on the willingness of its staff to fully engage in the incident review process, which is vital in ensuring that lessons are learned in relation to patient safety.
In relation to the public interest, the HSE said it considered the following factors in favour of release: the public interest in family/next of kin being fully informed of the care and treatment a patient received and of being fully informed of investigations into same; the public interest in the public knowing how a hospital performs its functions, specifically in this case, how it reviews and responds to adverse incidents which occur; the public interest in members of the public knowing that information held by the HSE about them or others is accurate. Against release, it said it considered the following public interest factors: the public interest in ensuring that reviews are carried out in accordance with fair procedures and the terms under which they are conducted; the public interest in protecting the right to privacy of individuals; the public interest in confidential information being kept confidential; the public interest in members of staff being able to communicate in confidence with public bodies where fact checking is required to ensure accuracy; and the strong public interest in hospitals being able to effectively carry out reviews into incidents which occur as well as the interest in persons engaging openly in such reviews in order to learn from those incidents.
The HSE said that having considered the above factors, it decided that the public interest was not, on balance, better served by granting the applicant's request. It said that releasing the records would harm its ability to carry out similar reviews in the future with open participation by the persons involved, which is of importance to the health service, the hospital, its patients and their families, and the wider public. It said that the public interest in being informed about such review does not extend to detrimentally impacting the ability to carry out future reviews. It said that the SAR report reflected the input of those interviewed and that the report has already been released as part of the normal processes under the IMF.
The applicant, on the other hand, submitted that it appeared that the HSE and the SAR investigation team do not under any circumstance want any person outside themselves to have access to the stenographer records which are verbatim records given by the witnesses to her daughter's death and she queried whether this could be because the information in the SAR report does not correspond with what the witnesses said happened. She said that she had already provided proof to the OIC that the SAR report contained inaccuracies [this is a reference to a section 9 application under the FOI Act which was also reviewed by this Office]. She queried the HSE's reference to adherence to the IMF as part of the basis for refusing her access to the records when it has already been established that it did not adhere to them [in relation to returning the records to the commissioner of the SAR]. It is her position that she requires access to the records in order to establish whether the SAR was carried out in an appropriate manner, with the review team abiding by due diligence and natural justice.
Analysis
Having considered the HSE's submissions, it seems to me that its position under section 30(1)(a) is essentially that release of the records at issue could reasonably be expected to prejudice the effectiveness of future investigations into serious incidents which may occur in the health service, by reducing the willingness of staff to fully and openly participate in such investigations.
The HSE's 2018 Incident Management Framework, which has been superseded by a later version but seems to have been the version in place at the time, defines a SAR as:
"A methodical review of an incident which involves the collection of data from the literature, records (general records in the case of non-clinical incidents and healthcare records in the case of clinical incidents), individual interviews with those involved where the incident occurred and analysis of this data to establish the chronology of events that led up to the incident, identifying findings that the reviewers considered had an effect on the eventual harm, the contributory factors, and recommended control actions to address the contributory factors to prevent future harm arising as far as is reasonably practicable. The principles of systems analysis can be applied using a comprehensive, concise or aggregate approach."
I accept that a SAR, commissioned by the HSE to investigate an adverse incident, is an investigation for the purposes of section 30(1)(a) and that carrying out interviews with relevant persons is part of the procedure or method employed for the conducting of such an investigation.
Having carefully considered the content and context of the creation of the records at issue, I am satisfied that they contain the recollections and opinions of identifiable persons in relation to the circumstances surrounding the surgery and subsequent death of the applicant's daughter. I accept that the information was given on a voluntary basis, in an effort to identify what happened, how and why it happened and what could be done to reduce the risk of recurrence and make services safer for patients. Having regard to the specific content of the records, it seems to me that the individuals participated in a frank and open manner and with an expectation of a degree of confidentiality. In record 3, for example, the interviewee specifically sought assurances that she could speak openly about certain matters and she was reassured that she was speaking in confidence. I accept that for a SAR to meet its intended purpose, it requires those interviewed to fully and frankly engage with the review team, which may include individuals speaking critically or questioning the judgment of their own colleagues, or indeed of their managers or others more senior to them. It may also involve them openly discussing their own mistakes or reflecting on things they may wish they had done differently. While such commentary or descriptions of events may be reflected in the final SAR report, which is then disseminated to the relevant parties, the report is pseudonymised. I accept that if those interviewed as part of a SAR expected that the transcripts of their interviews could be made public, it could reasonably be expected to reduce their willingness to fully engage and openly share their experiences and perspectives. Indeed, it seems to me reasonable to think that some people might refuse to engage at all, in what is a voluntary process. For completeness, I note the HSE's emphasis in its submissions about the records containing transcripts that have not yet been 'fact-checked' by the interviewees; while these are the records that are under consideration here, it's not apparent to me that even if they were the 'fact-checked' versions, that the same harms could not also reasonably be expected to arise. For all of these reasons, I find that section 30(1)(a) applies to the records.
Section 30(2) provides that section 30(1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
Before I consider the applicability of section 30(2), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, while I can fully appreciate and understand the importance to the applicant of obtaining access to as much information as possible relating to the circumstances surrounding her daughter's death, this means that I cannot have regard to her motives for seeking access to the records at issue except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. that the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment 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 Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
While the applicant did not make specific submissions to this Office on the public interest, it seems clear to me that she is seeking access to these records in order to more fully understand the circumstances surrounding her daughter's death and to establish that the SAR was carried out appropriately and that the final report reflects accurately the information provided through the interview process. While this could be characterised as essentially a private interest in seeking access to the records, I have no doubt that it reflects a more general public interest in family/next of kin being fully informed of the care provided to their deceased family members and being fully informed of investigations into same and in knowing how adverse incidents, when they occur, are reviewed and responded to. I note that this is reflected in the public interest factors the HSE said that it considered.
Having considered all of the above, I believe that there is a strong public interest in protecting the integrity and effectiveness of the SAR process in general, whose main purpose is to look at serious adverse events that occur in the health service and to find out what happened, why it happened and what can be done to reduce the risk of it happening again. This public interest, it appears to me, is reflective of the wording of the exemption at section 30(1)(a). In my view, the effectiveness of a SAR is heavily reliant on the willingness of relevant individuals to engage openly and fully with the process. If this does not happen, it seems to me that the risk of adverse events being repeated and systemic issues of patient safety not being identified and addressed would be significantly increased. I think it is reasonable to conclude that the potential impact of this would be increased negative outcomes for patients, and indeed healthcare staff seeking to perform their functions as safely and effectively as possible. I have already accepted that release of the records could reasonably be expected to reduce participation in future SARs and I find this to be a significant public interest factor weighing against release.
I believe that there is also a significant public interest in facilitating scrutiny of how a public body, in this case the HSE, performs its functions, in this instance understanding how the SAR process was conducted and the various steps that led to the final outcome i.e. the SAR report which has been provided to the applicant. I note that the applicant is not happy with aspects of the SAR and has concerns about its accuracy in parts, and I accept that release of the records may bring a degree of further transparency to the process for her. However, having regard to the specific content of the four records it seems to me that any additional transparency would be minimal and it is not apparent to me that there is anything specific contained within the records that could be identified as a fact-based reason tipping the balance in favour of disclosure.
On balance, for the reasons set out above, I find that the public interest would be better served by refusing to grant access to these records and I find that section 30(2) does not apply.
As I have found the records to be exempt under section 30(1)(a), there is no need to address the HSE's other claims for exemption.
For completeness, I note that the applicant suggested that the records could be released with certain information redacted so that staff members would not be identified. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. It provides that this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. Having regard to the specific records, I am satisfied that this is not appropriate in this case as it is not practicable to prepare and release redacted versions of the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision. I find that it was justified, under section 30(1)(a) of the FOI Act in refusing to release the stenography records.
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.
Ger Deering
Information Commissioner