Decision
Ken Foxe & the Children’s Health Ireland (CHI)
From Office of the Information Commissioner (OIC)
Case number: OIC-151586-D2J8H9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151586-D2J8H9
Published on
Whether CHI was justified in refusing access, under section 29(1)(a) of the FOI Act, to a letter sent by paediatric doctors to management at a named CHI hospital, and in refusing access to any further records under section 15(1)(a)
22 August 2025
In a request dated 30 April 2024, the applicant sought access to all records held in the email account of the CEO of a named hospital referring or relating to a letter sent by six hospital consultants to the management of a named CHI hospital, as referenced in a specified media article.
As CHI failed to issue a decision on the request within the statutory timeframe, the applicant sought an internal review of the deemed refusal of his request. As CHI again failed to issue a decision within the statutory timeframe, the applicant applied to this office on 31 July 2024 for a review of the deemed refusal of his request. Following engagements with this Office, CHI wrote to the applicant on 27 August 2024, wherein it said it had decided to release three of the four records it identified as falling within the scope of the request. It refused access to the letter sent by the doctors to CHI management under section 29(1)(a) of the FOI Act. On 28 August 2024, the applicant informed this Office that he wanted the review to proceed on the basis that CHI had withheld “the most important of the documents” and on the ground that adequate searches had not been carried out for other records.
The Office sought clarification from the applicant as to whether there were specific records that he believed should have been released to him. While the applicant did not identify any specific records, he reiterated his belief that adequate searches had not been carried out. CHI was afforded an opportunity to respond to the applicant’s assertion. In response, CHI said all records relevant to the request were identified and either released or refused.
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 applicant’s comments in his application for review and to the submissions made by CHI in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
CHI’s claim that no further relevant records coming within the scope of the applicant’s request exist is, in essence, a refusal to grant access to any further relevant records under section 15(1)(a) of the FOI Act which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned with whether CHI was justified in refusing access, under section 15(1)(a) of the Act, to any further records apart from the four already identified and in refusing access to record 4 under section 29(1)(a) of the Act.
CHI failed to issue a decision on the request at either stage of the decision-making process and only did so following engagement with this Office. CHI is well aware of its obligations in this regard. It is incumbent on me to emphasise to CHI that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. CHI should take steps to ensure that it is in a position to issue decisions on all future FOI requests within the relevant statutory timeframes.
I also wish to draw attention to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body concerned shows to the satisfaction of the Information Commissioner that the decision was justified. This means that the onus in this case rests with CHI to satisfy this Office that its decision to withhold relevant records was justified.
Do other relevant records exist?
During the course of the review, this Office sought specific details of the searches undertaken by CHI in an effort to identify all relevant records coming within the scope of the applicant’s request. In its response, CHI said its FOI office was advised that the correspondence referenced in the request was addressed to the Clinical Director and the CMO. It said an email was sent to the Clinical Director and CMO on 20 February 2024. It said the email was copied to a number of clinicians but was not copied to the CEO at the time. It said that after the article was published, the CEO received a request from the Department of Health for a copy of the correspondence on 23rd April 2024 (RECORD 2). It said the Clinical Director's PA forwarded a copy of the correspondence (RECORD 4) to the CEO on 23rd April (RECORD 1). It said a further request from the Department to the CEO was received on 24th April and the letter was sent from the CEO's office to the Department that same day (RECORD 3).
CHI added that a number of emails between the press office and a query from RTÉ in relation to the correspondence was not deemed to form part of the request as they related to media queries and were not included in the emails released. It provided copies of the emails to this Office. It said that if the additional emails were considered to come within the scope of the request, it would have refused access under section 29 of the Act.
I have examined the emails in question. While I accept that they relate to a press query arising from the media article referenced by the applicant in his request, I am satisfied that they also come within the scope of the applicant’s request, given that they are all held in the then CEO’s email account and all relate to the letter sent. For the avoidance of doubt, I am satisfied that all of the records forwarded to this Office during the review are within the scope of the request. A number of the emails form part of an email string. While the CEO may not have been the recipient of some of the emails in the email string, they form part of a chain of emails that were sent to her account relating to the letter sent.
Accordingly, having regard to the fact that additional relevant records were found during the review, I find that CHI was not justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records. However, I do not consider it appropriate to simply direct release of the additional records in the circumstances where CHI indicated it may have relied on section 29 to refuse access to the records, if they were deemed to be within scope, nor is it appropriate for this Office to act as a first instance decision maker in respect of the records. Accordingly, I consider that the most appropriate course of action to take is to remit the matter back to CHI so that it can make a new first instance decision with regard to the additional records. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with CHI’s decision. While I make no finding on the appropriateness of CHI’s indication that it would have withheld the records under section 29(1), I would remind it of the need to satisfactorily show that the release of the records would be contrary to the public interest for that exemption to apply.
Section 29(1)(a)
Record 4 comprises the letter sent by the six consultants to the management of the hospital that CHI withheld under section 29(1) of the Act. That section provides for the discretionary refusal of a request if the record concerned contains (a) a matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. The public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.
Where an FOI body is relying on section 29(1) to refuse access to a record, consideration also must be given to whether section 29(2) applies to the record before reaching a conclusion on the application of the exemption as that subsection serves to disapply section 29(1) in certain circumstances.
CHI said the record relates to a deliberative process regarding the new National Children’s Hospital (NCH) project and programme. It said the letter described the legacy model of care arrangements for new-born infants requiring critical care in the hospital and the hope that these infants would transition to alternative specified care in advance of the move to the NCH. It said the correspondence outlined concerns with the recent evolution of neonatology practices and referral patterns which have not matched with the necessary facilities, equipment and clinical appointments to meet those changes. It said the purpose of the letter was to communicate concerns so that CHI could prioritise and expedite planning for a fully functional level 4 Neonatal Intensive Care unit. It said the correspondence set out key principles which included specialist training, staffing requirements, resources, infection control and physical environment, which is endorsed b the National Clinical Programme for Paediatrics and Neonatology, the National Women and Infants Health Programme and the Faculty of Paediatrics in the Royal College of Physicians of Ireland. It said that release of the record could hinder the current deliberative process of this work, which is contrary to the public interest. It said the factors it considered against release included the need to maintain a degree of confidentiality having regard to the subject matter and the circumstances of the communications, and that premature release could impair decision making processes.
The record at issue asks CHI to adopt a number of recommendations made by the relevant consultants. I accept CHI’s argument that the record contains matter relating to its deliberative processes. However, that is not the end of the matter as section 29(1) can only apply if the release of the record is contrary to the public interest.
The public interest test in section 29(1)(b) is a strong one, more so than elsewhere in the Act. Other sections of the Act require that on balance the public interest would be better served by granting than by refusing to grant the request, whereas in section 29(1)(b) public bodies are required to show that granting the request would be contrary to the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. The FOI Act clearly envisages that there will be
cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
CHI’s arguments are, in essence, that release of the record would be contrary to the public interest as release would somehow harm the need to maintain a degree of confidentiality and could impair decision making processes. It did not, however, explain how the release of the record could cause such harms. For example, it did not explain why it considered the record to have been given in confidence and how the release of the record would somehow prejudice or impair the future flow of similar such information. Even if it had, I would find it difficult to accept that the release of the record would cause hospital consultants to be reluctant in the future to put forward what are essentially recommendations they consider necessary for the improvement of patient care. Moreover, CHI did not explain how the release of the record could impair decision making processes, nor is it apparent to me how such harm might arise. Accordingly, I am not satisfied that CHI has satisfactorily shown that the release of record 4 would be contrary to the public interest. I find, therefore, that section 29(1) does not apply to the record.
Having conducted a review under section 22(2) of the FOI Act, I hereby annul CHI’s decision. I find that CHI was not justified in its decision to refuse access to record 4 under section 29(1) of the FOI Act and I direct its release. I find that it was not justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records and I direct it to make a fresh decision on the additional records it identified during the course of the review.
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