Decision
Ms T and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-142682-M7N5L4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142682-M7N5L4
Published on
Whether the HSE was justified, under section 30(1)(a) of the FOI Act, in refusing access to records relating to a Systems Analysis Review (SAR) into the incineration of retained perinatal organs following post mortem
29 May 2024
This case has its background in an earlier FOI request and review by this Office (reference: OIC-105212-R7M5L3). In that case, the applicant had sought records relating to the retention and disposal of the organs of her late son. At the time of that decision, 14 April 2022, a Systems Analysis Review (SAR) was underway into an incident which occurred in the spring of 2020 whereby retained perinatal organs were sent for incineration instead of burial or cremation. That review has since been completed and the report, dated 22 November 2022, has been published on the HSE’s website.
In an FOI request dated 15 February 2023, the applicant said that now that this review had been completed, she was seeking access to records that had previously been withheld, including, but not limited to:
The HSE did not issue the applicant with a decision on her request within the statutory timeframe and on 31 March 2023, the applicant confirmed that she was seeking an internal review of this deemed refusal. On 4 May 2023, the HSE issued a decision refusing the request. It said that it was refusing access to records at categories 1, 2, 4 and 6 above under section 30(1)(a) of the FOI Act. It refused to release records at categories 3, 5 and 9 under section 15(1)(a) i.e. that no records exist or could be found. It refused to release records at categories 7 and 8 under section 37 of the FOI Act.
On 28 September 2023, the applicant applied to this Office for a review of the HSE’s decision. She said that she had waited for the investigation/review to be completed before looking for the outstanding files which she listed as: the incident report, Preliminary Investigation reports, correspondence with SIMT, and the draft report.
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 HSE, and to the comments made by the applicant in her request for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The HSE provided a Schedule of Records listing eight records, all of which were refused under section 30(1)(a) of the FOI Act. The records can be summarised as follow:
• Records 1 and 2, incident reports filed on the National Incident Management System
• Records 3 and 4, preliminary assessment reports
• Records 5, 6 and 7, minutes of Serious Incident Management Team meetings
• Record 8, draft of the Systems Analysis Review Report
No records refused under section 37 were listed on the Schedule or provided to this Office.
I wrote to the applicant on 16 February to 2024 to confirm my understanding that she wished the review to consider the eight records listed above, as reflected in her application for review. She did not respond and I have proceeded on this basis.
This review is therefore concerned only with whether the HSE was justified, under section 30(1)(a), in refusing to release the eight records listed on the Schedule.
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 certain records, either in whole or in part, was justified. 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
The HSE refused access to all eight records under section 30(1)(a), which is what is known as a harm-based exemption.
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.
Submissions
The HSE made a detailed submission to this Office which I have summarised below.
It 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 that it refused access to the draft records as they are considered the working documents of the review process, which are subject to change as information is gathered and interviews are completed.
The HSE said that given the context in which these reviews are prepared and the 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 staff involved in any such process must be afforded an opportunity to review the accuracy of draft documents, as they relate to them, in order to ensure that the documents accurately reflect their input. It said that the participating staff have a right to see any remarks which they made which could adversely affect them, and that this is both a legal requirement and it ensures accuracy in the process. The HSE said that draft reports that have not been through this full process may, consequently, contain information which inaccurately reflects what a staff member said. Furthermore, it said that there was a risk that some staff submissions may have included adverse comments about individuals, which were, following review, deemed inappropriate for inclusion in the final report. It said that its position is that any draft records which, ultimately, may have been altered following engagement with staff should be deleted once the final report is produced.
In addressing the question as to what harm or prejudice it envisaged from the release of the records, it said that such release would prejudice the carrying out of other similar reviews in other cases. It said that the hospital staff would likely be unwilling to participate if they were of the view that such information might be released in draft form, and that it was reliant on the willingness of its staff to fully engage in this vital incident review process so that, ultimately, lessons are learned in relation to patient safety. It said that there was a risk of reduced participation, for future reviews, if information that could be misconstrued or used out of context and that, consequently, would fall to be invalidated at a later stage, was released. It said that as the purpose of such reviews is to examine misguided decisions and systems failures, it is paramount that the process be as comprehensive and accurate as possible in order to protect the best interests and welfare of future patients
The HSE pointed to page 40 of the published report which stated: “The Review will follow a systems analysis methodology as per the HSE Systems Analysis Guidance for Services, 2018 and will be cognisant of the rights of all involved in relation to privacy, confidentiality, will follow fair procedures and due process.” It also referred to page 8 which stated: “On completion of the meetings with staff and families and the documentation review process, a draft report was prepared. The draft report (or sections of the draft report) was shared with staff members in advance of finalising the review process. The Review Team did this in line with the principles of fair procedures and to ensure that the report was factually accurate. Amendments or additions were made to correct any inaccuracies or incomplete information.”
The HSE said that the issue has already received a significant amount of media coverage. It said that if released, it envisaged that the draft report would be widely distributed and that this would most likely inhibit staff from engaging in future reviews in a free and frank manner which would lead to weaker, less comprehensive final reports which would be of little use to the hospital or its patients.
Analysis
Record 8
Having considered the HSE’s submissions, it seems to me that its position is essentially that release of the draft SAR report (record 8), which was prepared for the specific purpose of adherence to the principles of fair procedures and natural justice as set out in the HSE’s Incident Management Framework, 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.
Having considered the arguments, and the content of record 8, 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).
I have had regard to the terms of reference of the SAR (on page 39 of the published report) which specifies that: “All who participated in the review 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. Prior to finalising the report, the Lead Reviewer will ensure that the Review Team apply a quality assurance process to ensure compliance of the review process as outlined in the HSE, Incident Management Framework & Guidance 2018 prior to furnishing the final report to the Review Commissioner. The Review Commissioner will seek assurance that the quality assurance process has been completed.” This is reflective of the principles of natural justice and fair procedures set out in the HSE’s Incident Management Framework. I note that each page of record 8, has a disclaimer in the header which states: “Strictly Private and Confidential. This is a draft document and can only be considered as such. This document can be expected to be incomplete and to contain factual/clinical inaccuracies and/or information that may require additional clarification”. I am satisfied that this draft report was prepared in part for the purpose of identifying any factual errors and for any other relevant feedback to be provided by relevant staff members before the report was finalised.
It seems to me that while staff members participating in a SAR would be fully aware of the fact that the final report would be made available, either to the general public or at least to the parties involved, they would have a legitimate expectation that earlier drafts 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 earlier drafts might be released, which may not accurately reflect their contribution or might impinge on their entitlement to fair procedures and natural justice, it seems to me to be reasonable to expect that they might engage with such a review with less candour and frankness than would be necessary to ensure its effectiveness. It seems to me that the success of any SAR process is reliant on openness and transparency by participating staff and I accept that any reduced engagement could prejudice its effectiveness. For these reasons, I accept that section 30(1)(a) applies to record 8.
Records 1-7
The HSE did not make any specific arguments as to why it believed section 30(1)(a) to also apply to records 1-7. I reverted to the HSE and queried this, and gave it a further opportunity to make arguments in relation to records 1-7, and why it believed this exemption to apply to these records. It confirmed that its position was unchanged and that the records should not be released to the world at large. It provided no further detail or arguments.
I think it is important to note that while the eNet judgment says that failure by an FOI body to justify its decisions does not lead to an inevitable or statutorily mandated outcome, and that this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, this does not mean that this Office must, or will, continue to ask a body for sufficient details and arguments until the threshold for an exemption claimed is met. If the HSE believes that the record(s) disclose matters that could cause a harm specified in section 30(1)(a), that is not apparent from its face, it is up to HSE, as the subject matter experts, to explain to this Office what it discloses and how it envisages harm flowing from such a release.
In the absence of specific arguments from the HSE, I considered whether the arguments set out in relation to record 8 could also be applicable to records 1-7. Having carefully examined the records themselves, it is not apparent to me that the concerns around natural justice and fair procedures can reasonably be found to apply to records 1-7, or that their release could reasonably be expected to inhibit full and open engagement of staff in SAR processes in the future. These records comprise the incident reports filed on the National Incident Management System, the preliminary assessment reports, and minutes of meetings of the Serious Incident Management Team, all of which relate to the initial response when the incident came to light, and which predate the establishment of the review team for the SAR. Furthermore, much of the information contained in these records is reflected in the final published report. Having carefully considered the HSE’s submissions, and the content of the records, it is not apparent to me that release of these records could reasonably be expected to prejudice the effectiveness of the SAR process, or other examinations or inquiries conducted by the HSE, or the procedures or methods employed. I find that section 30(1)(a) does not apply to records 1-7.
Section 30(2): the public interest
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. I must now consider section 30(2) in relation to record 8.
In its submissions to this Office, the HSE identified a range of factors in favour of, and against, release of the records. In favour of release, it said that it considered:
Against release, it said that it considered:
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 hospital’s ability to carry out similar reviews in the future, and that the ability to carry out these reviews with open participation by staff involved was a matter of importance both to the hospital but also to patients and the wider health sector. It concluded that the public interest in being informed about such reviews does not extend to inhibiting the ability to carry out those reviews.
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, this means that I cannot have regard to the applicant's 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 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 any specific submissions to this Office, on the public interest or otherwise, it seems to me reasonable to assume that she is seeking access to the records in the context of the death of her son and the manner in which his retained organs were dealt with, and seeking a full understanding of the circumstances that led to this happening, and how the HSE subsequently deal with it. While this could be characterised as essentially a private interest in seeking access to the records, it seems to me to also reflect 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 also that in her FOI request the applicant sought access to records showing where a decision was made not to provide a copy of the draft report to the families prior to publication. Reference to this decision is made on page 8 of the final report. It could possibly be construed that there is a public interest argument in favour of release of the draft report, where an earlier commitment was made to families that they would be given a copy of it. However, it is important to emphasise that release to a limited group of people for a limited purpose (i.e. release of a draft, in confidence, to family members affected by the incident for comment prior to it being finalised) is distinct from release under FOI which is essentially, or at least potentially, to the world at large, given that there are no restrictions placed on how a released record is used. In any event, this Office has no remit to adjudicate on how FOI bodies perform their functions generally.
Having considered all of the above, it seems to me that there is a significant public interest in facilitating scrutiny of how a public body, in this case the HSE, performs its functions, and how it reviews and responds to adverse incidents when they occur. However, it also seems to me that this public interest has been served to a significant extent by the completion and publication of the final SAR report. I accept that release of the earlier draft would bring a degree of further transparency to the process, however I believe that such additional transparency should not be at the expense of damaging the integrity the SAR process, especially where that process is designed to ensure that it adheres to the principles of fair procedures and natural justice.
There is also a strong public interest in protecting the integrity of the SAR process, whose main purpose (as summarised on page four of the final report) is “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, in circumstances where the publication of the final report has resulted in a significant degree of transparency around the matters that were the subject of the review, and given my finding that the release of the record could reasonably be expected to prejudice the effectiveness of the SAR investigative process, I am satisfied that the public interest would, on balance, be better served by refusing access to record 8.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that HSE was justified, under section 30(1)(a) in refusing to release record 8, the draft SAR report. However, I find that it was not justified in refusing to release records 1-7, and I direct their release.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Emer Butler, Investigator