Decision
Right to Know CLG and St. Vincent's University Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-152603-P4C8T5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152603-P4C8T5
Published on
Whether the Hospital was justified in refusing access to correspondence with the HSE regarding funding shortfalls
13 May 2025
The applicant’s FOI request of 30 July 2024 sought access to all high-level correspondence between the Hospital and the HSE regarding funding shortfalls.
The Hospital’s decision of 28 August 2024 refused access to an unspecified number of records. It quoted the provisions of sections 36(1)(a), (b) and (c) of the FOI Act. It did not specify which provision(s) of section 36(1) it was relying on, or explain why it considered the provision(s) to apply to the records.
The applicant sought an internal review on 29 August 2024. Amongst other issues, he questioned whether a thorough search and retrieval process had taken place.
The Hospital’s decision of 26 September 2024 covered three records. It affirmed its reliance on “section 36(1)” of the FOI Act and gave a general explanation as to why it considered the records to be exempt.
On 7 October 2024, the applicant applied to this Office for a review of the Hospital’s decision. Amongst other comments, he said that he was seeking access to routine back and forth correspondence between two public bodies over financial allocations and scarcity of resources. He said that he was aware that such correspondence exists, further to the contents of board minutes that the Hospital had already released to him under FOI.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the Hospital and the applicant, to copies of records provided by the Hospital to this Office for the purpose of this review, and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the Hospital was justified under the FOI Act in refusing to grant the applicant’s request.
As the applicant points out, the Hospital’s decisions do not specify which provisions of section 36(1) it is relying on. Neither do they explain why it considered the exemption(s) concerned to apply.
I would remind the Hospital of what must be contained in decisions made under the FOI Act. Further to sections 13(2)(d) and 21(5)(c) in particular, where an FOI body decides to refuse to grant a request the notification of the decision shall specify:
• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.
The Hospital may also wish to have regard to the guidance for FOI bodies that is available on the website of the Department for Public Expenditure, NDP Delivery and Reform's Central Policy Unit (CPU) at foi.gov.ie. In addition, the Minister for Public Expenditure, NDP Delivery and Reform has published a Code of Practice (the Code) for public bodies pursuant to section 48 of the Act, which is also available on the CPU's website. The Code includes key details relevant to the processing of requests and the contents of decisions. Under section 48(3) of the FOI Act, public bodies must have regard to the Code in the performance of their functions under the Act.
At the outset of this review, this Office asked the Hospital to provide copies of the records considered in its decision-making process. I will refer to the three records listed in the internal review decision as records IR1, IR2, and IR3.
However, the Hospital forwarded seven records to this Office. Furthermore, none appeared to comprise record IR3, and it was unclear which comprised records IR1 and 2. In particular, two of the seven records have the same date as record IR1.
Amongst other issues, my request for submissions asked the Hospital to explain these matters, and to identify which records it had considered in its decision-making processes. I also invited it to make submissions on the application of section 36(1)(a), or (b) or (c) of the FOI Act, as appropriate.
In addition, I said that it is reasonable to assume the Hospital received some responses from the HSE, which would also be covered by the applicant’s request. Noting that no such responses had been considered for release, I said that the Hospital did not appear to have carried out proper searches for records covered by the request.
In response, the Hospital agreed that it did not carry out adequate searches. It provided a copy of record IR3, but did not explain why it had not sent a copy to this Office at the outset. It also provided a copy of a ninth record that post-dates the request, but gave no explanation as to why it may be relevant to my review. It did not identify the records the subject of its decision-making processes, or make any submissions as to why these should be considered exempt.
The Hospital accepts that it did not take reasonable steps to look for records covered by the request. However, this is not the only aspect to this review.
I have considered reviewing the merits of the Hospital’s refusal of access to the records it considered in its decision-making processes. However, the Hospital has not identified the records concerned. As noted, two of the seven records provided to this Office have the same date as record IR1. The Hospital’s position on record IR3, which it initially excluded from the records provided to the OIC, is also unclear. As described on the Hospital’s internal review schedule, record IR3 is a letter from DATHS (which I understand is an acronym for the Dublin Academic Teaching Hospitals) to Mr Bernard Gloster. In addition, the Hospital has not identified the exemption(s) being relied on, or made any submission as to why they should be found to apply to the relevant records.
Furthermore, most of records provided to the OIC have not been subject to any FOI decision making process. If I were to consider the applicant’s right of access to such records, I would be making a first instance decision on the records concerned rather than conducting a review. The role of this Office is to review decisions taken by FOI bodies on requests, not to effectively act as a first instance decision maker.
While I recognise that it is unsatisfactory for the applicant, it seems to me that, in all of the circumstances, the most appropriate course of action to take is for me to annul the Hospital’s decision on the request in its entirety, and to direct it to undertake a fresh decision-making process on all aspects of the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s decision. I direct it to carry out fresh searches for records covered by the request, including for correspondence received from the HSE. I also direct it to make a decision on any further relevant records found, and on those identified to date, in accordance with the provisions of the FOI Act.
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.
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Anne Lyons
Investigator