Decision
Dr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-144713-G5T5Q1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144713-G5T5Q1
Published on
Whether the HSE was justified in refusing access to additional records relating to augmentation during births and delivery on behalf of the 19 maternity units in the State under section 15(1)(a) of the FOI Act
2 April 2025
The applicant in this case is represented by a solicitor in this matter and therefore all references to the applicant in this decision should be taken to include correspondence with her solicitor where appropriate.
By way of background, the applicant is an academic researcher. In May 2023, she and members of her research team made five separate FOI requests to each of the 19 maternity units in the State, seeking access to records relating to various aspects of birth and delivery. The applicant’s team members made FOI requests Nos. 1, 3, 4 and 5 to each of the 19 units. The applicant made FOI request No. 2, again to each unit. The applicant is of the view that this Office’s reviews in relation to these cases should consider the HSE’s decisions on all five original FOI requests. I shall address this further below.
This review concerns FOI request No. 2, as made by the applicant on 4 May 2023, as follows:
“We request the following data for the month of October 2022. For each of the questions below, please provide a breakdown into nulliparas and multiparas.
1. Please provide us with the total number of births in October 2022 and a breakdown of full term (from 37 weeks) spontaneous onsets of labour (SoL) vs. induced labours (IOL).
2. Of those with SoL, how many labours were augmented during labour including amniotomy/artificial rupture of membranes (ARM) and augmentation with syntocinon?
3. Of those with SoL who were augmented, please provide a breakdown of type of delivery: how many had a spontaneous vaginal delivery, how many had an instrumental birth (suction cup or forceps) and how many had a c-section?
4. Please provide us with the hospital protocols/policies/standard operating procedures relating to augmentation of labour, and/or management of prolonged labour and/or management of ‘failure to progress’, including references to the national or international clinical guidelines that they are based on.
5. Please provide us with any clinical audit reports relating to augmentation and/or management of prolonged labour and/or management of ‘failure to progress’ that have been conducted in your hospital.”
The FOI requests made to the individual units were forwarded to the HSE National Lead Office (NLO) for review and management. It appears that this was done in order to establish if the records sought were held nationally. I also understand that a number of the maternity units informed the applicant that her request was being dealt with at a corporate national level by the HSE’s National Women and Infants Health Programme (NWIHP).
On 20 June 2023, the NWIHP issued a decision (HSE reference C285/23) wherein it stated that it was part-granting the applicant’s request set out above. While the letter did not specify this, I understand that it was intended to be a response to FOI request No. 2 on behalf of all 19 individual maternity units. The NWIHP provided some limited information relating to parts 1, 2 and 3 of the request, including details of the total number of births in October 2022 and those which had involved a procedure for augmentation. It also provided information and links to some guidelines which it considered to be relevant. The NWIHP
refused access to additional relevant records under section 15(1)(a) of the FOI Act, on the basis that further records did not exist or could not be found.
I understand that the applicant made an internal review request to the HSE and the maternity units in respect of FOI request No. 2 in June 2023. As she received no further records or substantive response, the applicant made another internal review request to the NLO and the units on 19 September 2023. The September letter referred to all five of the original requests made to the 19 maternity units.
As she had received no further substantive response from the HSE or the majority of the maternity units, on 29 November 2023, the applicant applied to this Office for a review of the HSE’s and maternity units’ handling of her requests. A small number of hospitals had issued decisions and internal review decisions on the requests, all of which also she sought to have reviewed, except the internal review decision made by one hospital, which had provided the majority of the information sought.
On foot of correspondence from this Office, the NLO issued an effective position letter on 16 January 2024. The NLO affirmed the NWIHP’s original decisions on all five requests, apparently on behalf of all 19 maternity units, although again, this was not stated. The NLO stated that the HSE’s Hospital In-Patient Enquiry (HIPE) data did not contain information relating to spontaneous onset of labour and that the NWIHP did not hold information in relation to local hospital protocols, policies or standard operating procedures. It also said that that the NWIHP and HSE Acute Operations made “all reasonable efforts to locate relevant information and respond comprehensively to the many sub-components of these five FOI requests”. It further stated that the NWIHP, as a national office, did “not govern or maintain local hospital information”.
Following receipt of the HSE’s effective position letter, the applicant informed this Office that she was not satisfied with the decisions on all five FOI requests.
During the course of this review, the applicant was contacted by my colleague and notified of this Office’s view concerning the scope of the 19 related reviews and given the opportunity to comment.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the parties as set out above. I have also had regard to the submissions made by the applicant and by the HSE. I have decided to conclude this review by way of a formal, binding decision.
From an examination of the correspondence between the applicant and the HSE, and with this Office, it seems to me that a number of issues arose on foot of the way the original and internal review requests were made in these cases and in how they were processed. As noted above, five separate requests were made to the 19 maternity units by five individual requesters, one of whom was the applicant in this case.
During the course of this review, this Office put the applicant on notice of a number of matters arising in relation to the requests, including the fact that the requester and internal review requester were different in relation to four of the five original requests and that the internal review requests relating to FOI requests Nos. 1, 3, 4 and 5 appeared not to have been made within the timeline set out in the FOI Act. She made substantive submissions in response, objecting to the matters raised. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
During the examination and acceptance part of the process carried out by this Office on the applicant’s application for review, the applicant was informed by this Office of the HSE’s position that it had not received requests for internal review in relation to FOI requests Nos. 1, 3, 4 and 5. The OIC cases which had been created relating to the HSE’s decisions in these cases were accordingly closed, as were those relating to FOI requests Nos. 1, 3, 4 and 5 and the decisions of a particular hospital. Subsequently, during the course of this Office’s processing of the applicant’s application for a review in relation to the 19 cases in question (18 maternity units and the HSE), the applicant was again put on notice that only the HSE and the maternity units’ decisions in relation to FOI request No. 2 would be considered (by letter dated 10 October 2024, which issued in OIC Case No. 144865).
In her response to the October letter, the applicant maintained her position that all five original requests should form part of this Office’s reviews. Among other things, she referred to the HSE’s effective position letter which referenced all five original requests and to her application for review to this Office, which also referred to all five. However, I note that she concluded by stating that she would consider re-submitting the FOI requests to the relevant maternity units and to the HSE.
From the correspondence provided to this Office by the applicant and by the FOI bodies concerned, it appears that the applicant made an internal review request to each of the maternity units and to the HSE in her own name in relation to FOI request No. 2 in June 2023. It also appears that, following further interactions with the HSE, NWIHP, the HPO and some of the maternity units, and in the absence of any substantive response, she made a composite internal review request dated 19 September 2023, to the NLO and 18 maternity units, relating to all five original FOI requests. I note that the applicant stated in her application for review to this Office that had “the team been aware at this time that the FOI Bodies would not, in fact, address all of our FOI Requests collectively, we would have submitted an internal review request for each FOI Request before the deadline set out in the FOI Act.”
I also note that it was put to the applicant in this Office’s letter of 10 October 2024, that it was not open to us to review the hospitals’ deemed refusals of FOI requests Nos. 1, 3, 4 and 5 “as no internal review requests were made in respect of these during the relevant timeframe”. In her response, the applicant did not dispute this, nor did she provide any evidence that internal review requests were made within the timeframe set out in the FOI Act in respect of FOI requests Nos. 1, 3, 4 and 5.
While I have sympathy for the applicant, and I have considered her arguments that the HSE’s handling of her requests added to the delay in her making her internal review requests, there is nothing before me to demonstrate that her internal review requests in relation to FOI requests Nos. 1, 3, 4 and 5 were made within the timeline set out in the FOI Act. Accordingly, I am satisfied that her later composite internal review requests were invalid. I am also satisfied that the applicant was notified that the HSE’s decisions and the hospitals’ decisions or deemed refusals relating to these requests would not be considered by this Office. I am further satisfied that the applicant given a number of opportunities to make submissions and provide evidence to show that earlier internal review applications had been made in all five cases, but that she has not done so.
Having regard to the above, this review is solely concerned with whether the HSE was justified in its refusal to release additional records relating to augmentation during delivery (FOI request No. 2) on the basis of section 15(1)(a) of the FOI Act.
I should state at the outset that the way in which the various requests were handled by the HSE has not been up the standards expected. As noted above, the HSE purported to issue a centralised composite decision and an effective position in relation to the matters concerned. However, none of these letters stated that the requests had been transferred to another part of the HSE, or on behalf of which maternity units the decisions were intended to relate. Furthermore, it appears that the HSE subsequently effectively informed the applicant that it did not hold the records sought at a national or corporate level and relied on section 15(1)(a) to refuse access to further records. This has frustrated the applicant’s attempts to access the records sought. I would expect the HSE to have regard to the precise nature of the records sought when deciding whether to deal with such requests at a national level in future.
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 FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As set out above, the applicant made her original request to each maternity unit directly. These requests were effectively transferred to the NWIHP, which issued its decision on FOI request No. 2 on 20 June 2023. As also set out above, the NWIHP refused most of the applicant’s request on the basis of section 15(1)(a) of the FOI Act. The NLO subsequently affirmed this decision in its effective position letter on 16 January 2024.
In her application for review to this Office, the applicant maintained her position that the records sought were held locally, i.e. by the maternity units to which her requests were made.
During the course of this review, the HSE stated that when the applicant’s request was originally received by various hospitals around the country, “as is normal practice in the HSE” the request was sent to the NLO for FOI “to see if one response could issue from a national office, rather than multiple decisions from individual hospitals which can be confusing to the requester”. It also stated that this approach had been “recommended by the OIC in previous decisions”. It further stated that this would be beneficial to the requester when seeking an internal review as she would only need to pay for one review. However, the HSE also informed this Office that it did not hold any additional information relating to the applicant’s requests centrally, and that instead, the information was held by the individual maternity units.
I note that, in submissions to this Office during the course of the 18 other related reviews, a number of maternity units confirmed to this Office that they were not asked to search for records or to provide any information to the NWIHP or the NLO for the purposes of processing the applicant’s request.
Unusually, in this case, the applicant and the FOI body are in agreement about the relevant issue – i.e. that the records sought are held locally by the individual maternity units, rather than centrally by the HSE. However, it appears that neither the HSE’s original decision maker nor the internal reviewer asked the units to carry out searches for relevant records.
In this regard, I note the Maternity Safety Statement guidance book published by the HSE (available at https://www.hse.ie/eng/services/list/3/maternity/mpss/maternity-safety-statement-guidance-book-version-4.pdf ), which relates to the collation and publication of a monthly statement of maternity-related statistics by all 19 maternity units.
Metrics 8-13 in the safety statement refer to the induction of labour. Bullet point 4 on page 4 of the HSE’s guidance book states that the Maternity Safety Statement “is based primarily on data sourced directly from maternity units. It is designed to capture and measure clinical activities, incidents and staffing levels within the maternity unit. It is primarily a management tool for each hospital to report on their own data. The data will be collected within the hospital, by hospital staff, and analysed by hospital managers.” [emphasis added]. Bullet point 5 on the same page states that “[t]he clinical elements within the Statement are drawn from the IMIS/QA1[Irish Maternity Indicator System/Quality Assurance]. The data for these elements must be sourced from the nominated IMIS/QA1 Officer in each maternity unit. As per guidance for IMIS/QA1, please do NOT use data or reports from national-level datasets, such as the Hospital Inpatient Enquiry System (HIPE), the National Perinatal Reporting System (NPRS), or National Perinatal Epidemiology Centre (NPEC).” [again, emphasis added].
It seems to me from the above that it should have been clear to the HSE that the records sought by the applicant in this case, i.e. records relating to specific clinical matters in a maternity unit, would be held at a local rather than at a national level. Accordingly, it is unclear to me why the HSE proceeded as it did. I am willing to accept that there are times when processing one FOI request at a national level rather than 19 individual requests locally could be more efficient and more cost-effective for a requester. However, this was clearly not the case here.
The HSE has confirmed to this Office that the NWIHP had identified “what limited records could be located at the HSE Centre level” in relation to the applicant’s request. However, it has also confirmed that the records sought were “under the control of the acute hospital management responsible for the maternity units concerned” rather than held at a corporate, national HSE level.
I have carefully considered the matters arising in this case. The parties are in agreement that the applicant made individual requests to individual maternity units, on the basis that the records sought would be held locally. The parties are also in agreement that the national HSE office did not hold the records sought. Furthermore, as noted above, the individual maternity units were not asked to conduct searches for relevant records by the NLO or NWIHP.
Section 15(1)(a) requires that an FOI body take all reasonable steps to locate relevant records. Based on the above, I simply cannot find that section 15(1)(a) applies in this case. Simply put, the HSE decided to process the applicant’s request centrally, despite the fact that it should have been or must have become clear at some point in the process that the information sought was not held nationally. I should state that I would expect an FOI body to ask the appropriate operational areas to search for relevant records once it became clear that the records were not held at a corporate level.
Having regard to the above, I find that the HSE was not justified in refusing access to additional records relating to the applicant’s request under section 15(1)(a) of the FOI Act, as it has not demonstrated that it took all reasonable steps to locate the records sought.
In the circumstances, it seems to me that the only logical course of action available to me is to annul the HSE’s refusal to release additional records relating to the applicant’s request.
I do not consider it appropriate, however, to direct the HSE to carry out a new decision making process, as the records are not held by the HSE as a corporate entity. Neither can I simply direct the release of the records sought, as they have not yet been identified or located by the individual units. Furthermore, I note in the applicant’s application for review that the HIPE data provided was not complete due to certain patient confidentiality concerns.
While my decision in this case can have no tangible benefit for the applicant, I can confirm that this Office will address the remaining 18 maternity units’ decisions separately. Many of these are deemed refusals as the majority of the units did not process the applicant’s request at all before it was escalated to a national level. However, a small number of units issued original and internal review decisions on the applicant’s request. In any event, all of these decisions will be reviewed separately by this Office based on the facts of each individual case.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision. I find that the HSE was not justified in refusing to release additional relevant records on the basis of section 15(1)(a) of the FOI Act, as it did not take all reasonable steps to locate the records sought.
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.
Sandra Murdiff
Investigator