Decision
Mrs. X & University Maternity Hospital Limerick (“the hospital”)
From Office of the Information Commissioner (OIC)
Case number: OIC-144871-H6D3S0 Case
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144871-H6D3S0 Case
Published on
Whether the hospital was justified in refusing in part the applicant’s request for access to records relating to augmented childbirths
5 September 2025
The applicant in this case is represented by a solicitor 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, including the hospital in this case, 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 decisions that issued (either from the individual maternity units or from the HSE) on all five original FOI requests. I shall address this further below.
This review concerns FOI request No. 2, as made by the applicant to the hospital on 4 May 2023. This request sought the following information, for the month of October 2022:
“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 request also sought, for each of the above questions above, “a breakdown into nulliparas and multiparas ”. I understand this to be a reference to births by women who have never given birth before (nulliparas births) and by women who have given birth on one or more previous occasions (multiparas births).
In the case of the majority of the FOI requests made to the individual maternity units, the matter was 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).
In the case of this request, however, the hospital engaged directly with the request at a local (hospital) level and, in a decision dated 31 May 2023, part-granted the applicant’s request. In particular, the hospital purported to respond to parts 1 and 4 of the applicant’s FOI request in full, by releasing to her documentation relevant to each part of the request. The hospital refused parts 2, 3 and 5 of the FOI request under section 15(1)(a) of the FOI Act (relating to the administrative refusal of an FOI request where the records sought do not exist or cannot be found after reasonable steps have been taken to locate them).
On 7 June, the applicant sought an internal review of the hospital’s decision. In particular, she indicated that she did not accept the hospital’s contention that section 15(1)(a) applied to parts 2 and 3 of her FOI request, and indicated that the documentation provided in response to part 4 did not adequately address that element of the request. In an internal review decision dated 10 October 2023, the hospital provided the applicant with additional documents related to part 4 of her request. The hospital affirmed its reliance on section 15(1)(a) of the FOI Act to refuse part 2 and 3 of the request. The hospital indicated that, as the applicant had not raised any issue in her internal review request regarding the elements of its original decision that addressed parts 1 and 5 of the FOI request, it was operating on the assumption that the applicant was satisfied with how it had dealt with those parts of the request.
On 29 November 2023, the applicant applied to this Office for a review of the HSE’s and maternity units’ handling of all of her requests, including the decision of the hospital in this case.
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, and I address this further below.
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 and comments made by the parties to the review. I have decided to conclude this review by way of a formal, binding decision.
In correspondence exchanged with the hospital, the applicant indicated her position that the hospital was not justified in relying on section 15(1)(a) of the FOI Act in its decision on parts 2 and 3 of her FOI request. In addition, I consider that, in the course of her correspondence with the hospital, and her subsequent correspondence with this Office, the applicant has essentially made out a case that, in relation to part 4 of her request, she does not accept that all the relevant records were identified and provided by the hospital. I further consider that the hospital’s responses to the applicant’s correspondence indicates an effective reliance on section 15(1)(a) of the FOI Act (that is to say, the hospital’s decision indicates its view that all relevant records that exist or could be located were provided).
As noted above, in its internal review decision the hospital did not address parts 1 or 5 of the applicant’s FOI request, as the applicant (in her application for an internal review) had specifically appealed the hospital’s decision in relation to parts 2, 3 and 4 of the request. In subsequent correspondence with this Office, the applicant indicated that, while she accepted the hospital’s decision on part 5 of her request, she remained dissatisfied with its decision on part 1. However, in circumstances where the applicant did not seek an internal review of the hospital’s decision on part 1 of her request, I am satisfied that there is no basis for me to examine this aspect of the hospital’s decision as part of this review.
Accordingly, this review is solely concerned with whether the hospital was justified under section 15(1)(a) of the FOI Act in refusing to provide additional records relevant to parts 2, 3 and 4 of the FOI request.
FOI requests made by the applicant’s team
As set out in the decision of this Office in OIC Case No. OIC-144855-J1B8T5, the applicant’s request above is No. 2 in a series of five requests. The applicant is of the view that the HSE’s and the hospital’s decisions on all five requests should form part of this Office’s review of each decision or deemed refusal to release the records sought. The applicant’s submissions on this point have been addressed in case OIC-144855. While I shall not go into the details in this decision, I am satisfied that the applicant was put on notice that only the decisions or deemed refusals in relation to FOI Request No. 2, concerning augmentation, would be reviewed by this Office. I am also satisfied that she was given an opportunity to comment or to provide further evidence but that she has not provided any persuasive argument or evidence in support of her position. It is, of course, open to the applicant to make new requests to the relevant units seeking the additional records concerned.
Separately, it is also important to note that a review by this Office is considered to be “de novo ", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Furthermore, I wish to note that this Office has no role in investigating complaints, adjudicating on how FOI bodies perform their functions generally, or acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
In addition, I note that in correspondence with this Office, the applicant set out her reasons for seeking the information at issue. it should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request.
Finally, I wish to note that the FOI Act enables access by requesters to information contained in records that are held by an FOI body. Generally speaking, it does not entitle a requester to have specific questions answered by FOI bodies (except to the extent that such questions might be construed as an FOI request), and does not require an FOI body to create new records.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of an FOI 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.
Details of the search and retrieval efforts undertaken by the hospital generally For the purposes of establishing whether the hospital had met the requirements of section 15(1)(a) by taking all reasonable steps to ascertain the existence and/or whereabouts of relevant records, I asked it to provide details of the efforts it had made to search for and retrieve records in response to the applicant’s FOI request. In response, the hospital stated that it had taken the following steps to search for and retrieve records relevant to the request.
Firstly, the hospital stated that it had consulted numerous systems, departments, and personnel to attempt to locate and retrieve the records requested. In particular, it stated that its clerical staff, who were responsible for responsible for electronic patient management, had reviewed the Integrated Patient Management System (IPMS) for relevant data. Furthermore, the hospital stated that it had contacted the Hospital In-Patient Enquiry Scheme (HIPE) office to determine whether the requested information could be sourced from coded HIPE data. In addition, the hospital stated that its Planning, Performance and Business Intelligence (PPBI) Unit had been asked to clarify whether the information could be extracted from directorate monthly meeting data, internal databases, Irish Maternity Indicator System (IMIS) reports, or patient safety reports. Moreover, it stated that the Chief Director of Midwifery (CDOM) had been consulted with, to establish whether the information was available within their remit or if they could advise on its potential location. The hospital also advised that its Midwifery Practice Development Unit had been requested to provide the information, or to advise on its availability or likely location, while its Clinical Director had been contacted to determine whether they could supply the information or advise on where it might be located.
The hospital stated that, following these comprehensive enquiries, no additional information had been identified beyond what had already been provided to the applicant. The hospital further noted that clinical decisions regarding the timing and rationale for augmenting labour, specifically, the management of 'failure to progress' or a prolonged first stage of labour, are made by the clinical care team, including midwives and obstetricians. It stated that both team members from disciplines had confirmed that such decisions are documented exclusively within the patient’s medical records and the relevant clinical policies.
The hospital also outlined that keyword searches were conducted in the hospital’s document management system (Q-Pulse), using terms such as augmentation, induction, labour, onset of labour, amniotomy, rupture, ARM, and syntocinon, and that any relevant policies turned up by such searches had been retrieved and released to the applicant.
Furthermore, the hospital stated that discussions had been held with numerous stakeholders to ensure all possible sources of relevant information had been explored. These stakeholders included the Midwifery Practice Management Coordinator, the Clinical Director of the hospital, the Chief Director of Midwifery at the hospital, the HIPE Lead for the Hospital Group and the PPBI Lead for the hospital.
Based on the details outlined above of its searches, the hospital stated that it could confirm that, to the best of its knowledge, the requested information does not exist elsewhere within the organisation. It also confirmed that no records had been misfiled or misplaced, but rather that the records simply do not exist in the format or level of detail requested. The hospital also stated that it could confirm that all relevant records have been retained or destroyed in accordance with established policies and procedures.
In relation to the details of the efforts carried out by the hospital to search for and retrieve records generally, the applicant stated that, based on her experience in dealing with other maternity hospitals to which she had made identical FOI requests, and from a review of the information provided by the hospital and HIPE to date, her position is that the information provided by the hospital is incomplete, for reasons which I address in more detail below in relation to the hospital’s response to the specific parts of the FOI request that are at issue.
Parts 2 and 3 of the FOI request
In its initial decision on parts 2 and 3 of the FOI request, the hospital did not provide substantive details in relation to the basis upon which it considered that section 15(1)(a) applied. In its internal review decision, it also provided scant details of its reasoning, with the hospital’s decision maker simply stating that “A further search and retrieval was made and I wish to confirm that the records do not exist ”.
In correspondence with this Office, the applicant set out the basis of her dissatisfaction with the hospital’s response in relation to parts 2 and 3 of the request. In particular, she stated that, in her request, she had sought (i) a breakdown into nulliparas and multiparas; and (ii) the inclusion of augmentation via oxytocin and via ARM. She stated that, contrary to the hospital’s position, she was aware that all maternity hospitals record data in relation to both forms of augmentation. The basis for such knowledge, the applicant stated, was that information provided by NWIHP and HIPE, in response to certain of the other associated FOI requests that she had made, included both surgical (ARM) and medical (oxytocin) augmentation. It followed, according to the applicant, that such information should be available at hospital level.
The applicant further stated that if (in contrast to what she stated was the position at other maternity hospitals in the state), the requested protocols and guidelines did not exist at the hospital, the hospital should (i) confirm that there is no guideline as to when and why to augment labour; and (ii) advise when, why and how, in the absence of a protocol/guideline, decisions regarding the augmentation of labour and the diagnosis of ‘failure to progress’/’prolonged first stage’ are made by individual obstetricians.
To address this latter point in the first instance, as noted above the applicant’s relevant right under the FOI Act is limited to that of access to records held by the FOI body that contain the information sought, and there is no entitlement to have specific questions answered by FOI bodies (except to the extent that such questions might be construed as an FOI request). I am not satisfied that the questions raised by the applicant in the course of this review and outlined above (regarding the supposed absence of guidelines, and how decisions are made in such absence) can reasonably be construed as an FOI request and, in any case, these specific issues were not raised with the hospital in the first instance. Accordingly, I am satisfied that I am not required to consider this aspect of the matter further as part of this review.
In relation to the applicant’s statement that she had “sought (i) a breakdown into nulliparas and multiparas” (i.e. information broken down into nulliparas and multiparas births) in response to parts 2 and 3 of her request, as noted above an FOI body is generally not required to create new records in response to an FOI request. The applicant’s right under the FOI Act, generally speaking, is to access information in pre-existing records held by the relevant body. I am therefore satisfied that the applicant has an entitlement to receive information broken down in the manner requested only to the extent that such information exists in that format in pre-existing hospital records (subject to the requirements of section 17(4) of the FOI Act, which I discuss further below).
In relation to the remainder of applicant’s arguments regarding the perceived failings of the hospital in its decision on parts 2 and 3 of her FOI request, I put these to the hospital and requested that it address same. In response, the hospital stated that it was not aware of any source or location, other than patients’ medical charts, where the information the applicant refers to is held. The hospital added that all maternity units in the State submit data for the annual IMIS report, and that it had released to the applicant the information that it had submitted for this purpose. The hospital stated that, while the IMIS report includes data on the number of "spontaneous " and "induced " labours, it does not capture the level of broken-down level of detail sought by the applicant – specifically, information related to the use of oxytocin or ARM. I would note that the IMIS report for 2023 (which seems to be the most recent report) is available online, and a perusal of same appears to support the hospital’s assertion that the broken-down level of detail sought by the applicant is not included.
I put the above arguments of the hospital in relation to parts 2 and 3 of the FOI request to the applicant for her consideration, and to afford her the opportunity to make any final submissions that she wished in relation to same. In response, the applicant stated that a number of other hospitals had provided the information requested sought, by reviewing patients’ medical charts for the time period in question—the month of October 2022—and providing the relevant figures. In light of this, the applicant stated that she did not accept the hospital’s claim that there is no source or location for these records, and contended that the hospital could easily provide the records sought by conducting a simple review of a limited number of existing records. The applicant also stated that the reasons for the hospital’s reference to the IMIS report were unclear to her but that, to the extent that the hospital was seeking to rely on the availability of the IMIS report to not respond to the request, that position was not accepted. In sum, the applicant maintained her position that the hospital does have the requested information available, that it is routinely reported to national-level health agencies, and that it could be produced in response to her requests.
I considered that the applicant’s point regarding other hospitals having been able to provide the information requested sought by reviewing patients’ medical charts warranted a further explanation from the hospital, particularly in circumstances where its position is that the records sought do not exist as the information is only contained in patient’s records. I therefore reverted to the hospital to request that it address further this argument of the applicant’s. In response, the hospital simply reiterated its position that, if the information sought by the applicant in parts 2 and 3 of her request exists, it would do so only in patient medical charts.
I find as follows in relation to parts 2 and 3 of the FOI request. Firstly, I must note again that an applicant’s entitlement under the FOI request is to access information contained in existing records that are held by an FOI body and, generally speaking, an FOI body is not required to create new records in order to respond to an FOI request. In her observations on the hospital’s response to parts 2 and 3 of her request, the applicant appears to accept that the mechanism by which the hospital might provide the figures sought would be via a process of review existing medical charts and collating and providing the relevant figures. However, my view is that, subject to the requirements of section 17(4) of the FOI Act, which I discuss below, the legislation places no obligation on the hospital to carry out such a process of review and collation in response to an FOI request, and nor can this Office require it to do so. While I am aware that, in response to a number of the applicant’s related FOI requests, a number of hospitals appear to have collated figures from pre-existing records, again I must note the FOI Act does not require public bodies to create records if none exist, except to the specific extent required under section 17(4).
The specific requirement under section 17(4) of the FOI Act is to extract records or existing information held on electronic devices, in certain circumstances. However, in the case at hand, the hospital has confirmed that the individual medical records, in which the information that the applicant seeks would be found, if it exists, are hard copy (paper) records. I am therefore satisfied that section 17(4) does not apply.
I also wish to address the applicant’s contention that, in circumstances where other maternity units in the State had been able to provide the records sought in response to certain of her other related requests, it followed that the hospital should be able to do so in this case. I do not accept that it necessarily follows, from the fact of certain other maternity units being able to provide the information sought, that the hospital must be able to do so in this case. It seems eminently reasonable to me to suggest that differing procedures and protocols might exist across various hospitals, such as might result in different methods of recording various categories of information. In any case, the only question I must examine in this review is whether the steps taken by the hospital in this case to search for and retrieve relevant records were reasonable, and the question of whether, and to what extent, other maternity hospitals might have been capable of providing similar records is not, to my mind, determinative of that question.
Taking into account the submissions of both parties, and noting in particular the hospital’s account (outlined above) of the efforts it made to search for and retrieve records relevant to the applicant’s FOI request, my view is that there is no information available to me to suggest that the hospital failed to take reasonable steps to ascertain the existence of, and locate, records relevant to parts 2 and 3 of the applicant’s, either in its initial decision on the request or on foot of the applicant’s further submissions in the course of this review. Similarly, I consider that there is no information available to me that would suggest that all relevant records that were located after such steps had been taken were not provided by the hospital. I find that the hospital was justified in refusing these parts of the FOI request on the basis of section 15(1)(a) of the FOI Act.
Part 4 of the FOI request
In its decision on part 4 of the FOI request, the hospital purported to grant the request fully, by way of additional records provided at internal review stage. However, in correspondence with this Office, the applicant also set out her dissatisfaction with this aspect of the hospital’s decision. In particular, she stated that, while the hospital had provided several protocols and guidelines, none of the material received to date related specifically part 4 of her request, ie. to the issue of when and why to augment labour, including, but not limited to, the management of ‘failure to progress/prolonged first stage of labour’, which is one of the possible reasons to augment labour.
In subsequent submissions to this Office, the hospital stated that the policies previously provided to the applicant were those that it had deemed the most relevant to the birth and maternity-related matters outlined in the request. The hospital stated that it does not have a single, dedicated policy addressing the specific question of “when and why to augment labour, including, but not limited to, the management of ‘failure to progress’ or prolonged first stage of labour .” Rather, it outlined that the management of such clinical scenarios is addressed across a range of existing policies.
Again, I put the hospital’s position regarding part 4 of the request to the applicant and offered her the opportunity to comment further. In response, the applicant stated that the policies provided to her by the hospital did not define how to assess or diagnose a delay in the first stage of labour, and nor did they contain any references to research, or national or international guidelines, that would define this. She argued that it was therefore unclear how the hospital approaches the questions of when and why to augment labour in circumstances where it is not defined in hospital policies. Furthermore, the applicant stated that the policies provided to her by the hospital referred only to induction and did not contain any information relevant to her requests in respect of augmentation. The applicant noted that other maternity hospitals in the State do not hold any one policy that defines how to diagnose prolonged first stage of labour and guide decisions on augmentation, and that these decisions are made on a case-by-case basis. To the extent that is true in respect of the hospital in this case, the applicant requested that the hospital confirm that position in writing. The applicant further requested that the hospital clarify its position, previously advised, that that such decisions are “documented exclusively within the patient’s medical records and the relevant clinical policies [applicant’s emphasis] ”, to confirm whether the “relevant clinical policies” being referred to are those that had already been provided to her by the hospital and, if they were not, to provide access to the relevant policies.
I find as follows in relation to part 4 of the FOI request. In my view, it seems reasonable for the hospital to assert that the information sought by the applicant does not exist in any one single, dedicated policy. I would further accept the proposition, advanced by the hospital, that decisions on when to augment labour is addressed on a case-by-case basis with reference to a number of policies. Indeed, the applicant appears to accept in the course of her correspondence with this Office both that other maternity hospitals in the State do not have one single policy addressing the question of when and why to augment labour, and also that a similar situation might prevail in the hospital in this case.
In relation to the applicant’s other points, while it may be the case that it is unclear how the hospital approaches the questions of when and why to augment labour in circumstances where it is not defined in hospital policies, this is an issue that goes to the question of the hospital’s practices and procedures generally. As outlined above, this Office has no remit to address such questions.
With respect to the applicant’s request that, in the absence of a single policy addressing the question of when and why to augment labour, the hospital provide her with certain additional information, I am of the view that the applicant has no entitlement to have these requests for information addressed by the hospital as part of this review. I would again note that, as discussed above, an applicant’s entitlement under the FOI Act is to access information contained in records held by an FOI body. An applicant is not entitled to have questions or requests for specific information answered, except to the extent that they might be construed as an FOI request, and an FOI body is (generally speaking) not required to create additional records in response to an FOI request. I am satisfied that the applicant’s additional questions do not constitute an FOI request. In any case, these were not matters addressed in the applicant’s original FOI request to the hospital, and as such do not come within the scope of this review.
On the basis of the above analysis, and again noting the account given by the hospital of the steps it took to search for and locate records relevant to the applicant’s FOI request, I am satisfied that the hospital has provided all of the records it holds in relation to part 4 of the request. I find that it was entitled to rely on section 15(1)(a) to refuse to provide any additional information, on the basis that it does not exist.
Conclusion
On the basis of the foregoing analysis, I am satisfied that the hospital made reasonable efforts to ascertain the existence of, and provide, records relevant to the applicant’s FOI request, and that it was entitled to find that additional records do not exist or cannot be located after such reasonable attempts had been made to locate them. I consider that the account the hospital has given of the efforts it made to search for and retrieve records indicates that all reasonable steps or relevant searches were carried out in relation to the records sought. In my view, it is reasonable to conclude that all reasonable steps appear to have been taken by the hospital in attempting to find relevant records.
It should be noted in this regard that the test in section 15(1)(a) is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location or existence of records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found.
Given the requirements of this test, and based on my analysis above, I consider that the hospital has provided sufficient information to this Office to demonstrate that the steps it took in this case to establish that the records could not be located were reasonable. I find that the hospital was justified in relying on section 15(1)(a) in relation to parts 2, 3 and 4 of the applicant’s FOI request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the hospital’s decision to refuse parts 2, 3 and 4 of applicant’s FOI request. I find that the hospital was justified under section 15(1)(a) of the FOI Act in refusing those aspects of the request on the basis that the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them.
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.
____________________
Neill Dougan
Investigator