Decision
Ms. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-144858-T9N5Y5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144858-T9N5Y5
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
12 May 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.
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.
The applicant is an academic researcher, who made her request as part of a series of five requests made by her research team. As set out in my decision in OIC Case No. OIC-144855-J1B8T5, the way in which the applicant and her team’s 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 issue. Furthermore, it appears that the HSE then 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) of the FOI Act. 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.
As set out above, and as addressed in detail in my decision 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. I have addressed her submissions on this matter in OIC Case No. 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.
Section 15(1)(a)
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.
As set out in my decision in OIC Case No. OIC-144855-J1B8T5, the HSE’s published Maternity Safety Statement guidance book, which relates to the collation and publication of maternity-related statistics, provides that this data should be sourced directly from each maternity unit, rather than from national-level datasets such as HIPE. From an examination of this guidance, it seems to me 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, were held at a local rather than at a national level. Accordingly, it is unclear to me why matters proceeded as it did in this case.
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.
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.
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Neill Dougan
Investigator