Decision
Ms. X & Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-146030-Y9P7H2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146030-Y9P7H2
Published on
Whether the HSE was justified in refusing access, under sections 15(1)(a), 15(1)(d), 30(1)(b), 32(1)(a)(ii) and/or 37(1) of the FOI Act, to the number of terminations of pregnancy carried out by the Ireland East Hospital Group (IEHG) for the years 2019 to 2023
19 February 2025
The Health (Regulation of Termination of Pregnancy) Act 2018 (the 2018 Act) governs access to terminations of pregnancy in Ireland. Sections 9 to 12 prescribe the circumstances in which terminations may be carried out.
Section 20 of the 2018 Act and the related Regulations - the Health (Regulation of Termination of Pregnancy) Act 2018 (Notifications) Regulations 2018 (SI 597 of 2018) - require medical practitioners to notify the Minister for Health (the Minister) of specific details regarding all terminations carried out under the legislation. Each year, pursuant to section 20, the Minister publishes an annual report on the notifications received. Published details include the number of terminations carried out, broken down by;
• the relevant sections of the 2018 Act
• the month in which the termination was carried out
• the service user’s county of residence, or place of residence where the service user lives outside of the State.
References to the Minister in the remainder of this decision include references to the Department of Health, as appropriate.
Since 2013, public hospitals in Ireland have been organised into seven Hospital Groups. The Group Chief Executive of each Hospital Group reports to the HSE’s National Director for Acute Services and is accountable for their Hospital Group’s planning and performance under the HSE Accountability Framework.
The IEHG is comprised of six statutory and five voluntary hospitals. It is in the public domain that the IEHG hospitals providing termination services (the providers) are the National Maternity Hospital (the NMH), the Midland Regional Hospital Mullingar, Wexford General Hospital and St Luke’s General Hospital Kilkenny.
I note here that the NMH is a voluntary hospital and an FOI body in its own right, while the remaining IEHG providers are HSE/statutory hospitals. Further to this Office’s queries on the matter, the HSE confirmed that the NMH provides services on behalf of the HSE, including the termination of pregnancies in accordance with the 2018 Act, in line with a Service Level Agreement (SLA). It says that Schedule 5 of the SLA sets out information that the NMH must provide to the HSE. In particular, it specifies information that may be requested by the HSE on an “ad hoc” basis for specific purposes, such as information relating to FOI requests. It says that it was agreed between the Hospital Group and the NMH that the decision on the applicant’s request in this case would include the records for the NMH, and that the NMH provided the data for this purpose. The HSE says that, in line with Section 11(9) of the FOI Act, it is satisfied that it holds the relevant records for the purposes of the Act.
I also note here that the applicant made her FOI request to the IEHG, which purported to issue decisions on the request. For the reasons set out above, I am satisfied that the HSE is the appropriate FOI body to which my decision in this case should be directed.
On 21 November 2023, the applicant submitted a request for data pertaining to the total number of terminations carried out under sections 9 to 12 of the 2018 Act at hospitals in the IEHG Group, for the years 2019 to 2022 and to the date of her request in 2023.
In its decision of 13 December 2023, the IEHG said that it was refusing access to relevant records which had been submitted to it by each provider for the purposes of responding to the FOI request under sections 30(1)(b) (functions of FOI bodies) and 37(1) (personal information) of the FOI Act. It said that the numbers of terminations for the various years are already in the public domain as they are published in the Minister’s Annual Reports, broken down by month of the year and by county. It said that this meets the public interest in publishing the figures, while protecting the rights of the service users and staff.
The applicant sought an internal review of that decision on 20 December 2023. Regarding the applicability of section 37(1) in particular, she said her original request was for the aggregate number of terminations performed each year in the IEHG as a whole, rather than within each individual hospital. She said she could not see how the release of the aggregate number of terminations, performed at maternity hospitals across several counties within the country’s largest hospital group in the years 2019-23, could present a greater risk of the identification of any individual’s identity than the information presented in the Annual Reports which specifically includes the individual’s county of residence.
In its internal review decision of 16 January 2024, the IEHG affirmed its refusal of the request under sections 30(1)(b) and 37(1). It also said it was relying on 15(1)(a) of the Act to refuse the request, on the basis that the record sought does not exist. It said it does not hold a record containing the aggregated information, and that it would need to create a new record to respond to the request, which the FOI Act does not require. It also sought to rely on section 15(1)(d) of the FOI Act (information in the public domain), further to the information published in the Minister’s Annual Report.
On 31 January 2024, the applicant applied to this Office for a review of the IEHG’s decision. During the course of the review, the HSE also sought to rely on section 32(1)(a)(ii) of the FOI Act (compliance with any law) in relation to the individual figures held relating to each provider.
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 correspondence summarised above and to the correspondence between this Office and both the HSE and the applicant on the matter.
The scope of this review is concerned solely with whether the HSE was justified in refusing access, under sections 15(1)(a), 15(1)(d), 30(1)(b), 32(1)(a)(ii), and/or 37(1) of the FOI Act, to the aggregate number of terminations carried out at IEHG hospitals for each of the years specified.
In her correspondence with this Office, the applicant suggested that the information published by the Minister may not be accurate. She also said that the Minister does not publish numbers of terminations performed in community vs hospital settings, which is what her request seeks to establish. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. Moreover, this office has no role in determining the accuracy, or otherwise, of the information published by the Minister each year.
I also wish to draw attention to section 22(12)(b) of the FOI Act which, as the HSE is aware, provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the HSE of satisfying this Office that its decision to refuse the request was justified in this case. In the case ofThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Section 15(1)(a) Act provides for the refusal of a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. Before I consider the relevance of section 15(1)(a) in this case, I should say that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where those reasonable steps result in the creation of a new record, that record is deemed to have been created on the date of receipt of the request for the purposes of considering whether or not such a new record should be disclosed in response to the request.
In this case, the HSE said that each provider sends notifications directly to the Minister, and securely retains electronic copies. It said that one IEHG provider has an in-house designed electronic system, and that the others hold spreadsheets, from which the relevant details may be extracted. It said no external parties can access the providers’ electronic systems or records. It said the IEHG does not capture the requested details in its own right, and that the requested information cannot therefore be extracted from IEHG/HSE electronic systems. It said that in order to provide the requested aggregated data, each provider would have to electronically extract its own relevant information and provide this to the HSE, and the HSE would then have to conduct the manual process of adding the various figures and creating a new record containing the totals. The HSE argued that such steps are not required.
In essence, the HSE’s argument is that it does not hold a record that contains the aggregate details sought and that it is not required to create a record pursuant to section 17(4). In essence, section 17(4) ensures that an FOI body cannot refuse a request for information that is held electronically in more than one record solely on the ground that extracting the information would involve the creation of a new record. However, the steps a body must take to extract the information are limited to the use of any facility for electronic search or extraction that (i) existed on the date of the request and (ii) was ordinarily used by the FOI body. For example, if an FOI body held information in a number of separate electronic records on a database and the database had the capability to produce a report of the collated information, then the FOI body would not be in a position to refuse a request for that information on the ground that extracting it would involve the creation of a new record, namely the resultant report. Having regard to the HSE’s explanation of the manner in which the various providers individually hold the relevant information in this case, I am satisfied that the steps required for the HSE to grant the request in this case would go beyond the steps required by section 17(4).
Nevertheless, the HSE does, indeed, hold information for each individual provider within the IEHG. Accordingly, the question I must consider is whether the HSE can justifiably rely on section 15(1)(a) of the Act to refuse to grant access to the aggregated figure sought on the ground that it holds no specific record that contains that precise information. In considering this issue, I believe it is worth noting the intent and purpose of the FOI Act which, as the Long Title states, is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies (my emphasis). It is clearly open to the HSE to simply add the figures it has for each of the providers in order to produce the aggregated figures sought. In its submissions to this Office, the HSE simply said that the FOI Act does not require it to create a new record to do so.
While I fully accept that an FOI body is not required to create a new record for the purpose of granting a request other than pursuant to section 17(4), which I have found not to apply here, the HSE does, indeed, hold a record that contains the individual totals for each provider. In the particular circumstances of this case, it seems to me that the release of those totals would effectively involve the granting of access to the aggregate figures sought. In my view, it would run contrary to the intent and purpose of the Act to find that the HSE was justified in refusing the request on the ground that it does not hold a single record that contains the information sought when it holds the information, albeit not in an aggregated form. Accordingly, I find that section 15(1)(a) does not apply in this case.
Section 15(1)(d) provides for the refusal of a request where "the information is already in the public domain". The HSE argued that the requested details are in the public domain, by virtue of the information published by the Minister. While it acknowledged that the published figures are not broken down by Hospital Group, as was requested in this case, it said the information is published as provided for under the 2018 Act. For section 15(1)(d) to apply, the information sought must be in the public domain. While I fully accept that certain information relating to terminations is publicly available, the specific information sought is not and this is acknowledged by the HSE. Accordingly, I find that section 15(1)(d) does not apply.
Section 30(1)(b) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). An FOI body relying on section 30(1)(b) should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should identify the relevant function relating to management and identify the significant adverse effect on the performance of that function which is envisaged and consider the reasonableness of the expectation that the harm will occur.
The HSE argued that the release of the information sought could reasonably be expected to have a significant, adverse effect on the safe and effective provision of a health service as provided for under the 2018 Act. It said it had significant concerns about the release of the figures sought either individually or in aggregate form for the IEHG. It said there is significant evidence of opponents of the legislation have staged several disruptive protests near hospitals across the country since the legislation was enacted. It argued that by highlighting specific numbers of women seeking a termination, these protests could cause added distress and disruption for service users, providers and their staff. It said the release of the information could result in certain hospitals/groups becoming the focus of protests or other actions in relation to the provision of termination services. It said there is a great deal of evidence to this already happening at various locations across the country in the media and online. Referencing the Health (Termination of Pregnancy) (Safe Access Zones) Act 2024 (the 2024 Act), it said the reasons for the passing of that Act is a serious indication of the significant harm that has occurred to the provision of a safe and effective healthcare service, and the steps that the Government considers necessary to protect the service and its users.
The HSE added that the relevant Hospitals strongly believe that in order to protect their services and the rights of their service users, the reporting of numbers of terminations should be done as it is currently done through the Department of Health by region.
Although not specifically mentioned in its submission, I note that the original decision stated that since the 2018 Act was enacted, opposition to it has been evident through protests outside hospitals and articles written on various platforms which include print, broadcast and social media channels. It said that such actions can act as a barrier for service users in accessing termination services. It said that witnessing these actions can cause harm to the wellbeing of service users and lead to delayed appointments and deferred treatments, as well as increasing judgement and stigma. It said that these actions can also impact on health professionals and decisions they make about how and if they could provide termination of pregnancy services within their healthcare setting.
I fully accept that terminations are very difficult and sensitive personal decisions, and that relevant providers must ensure the wellbeing of service users, other patients, and its staff. I also fully accept there have been country-wide protests at hospitals, and that articles have been published protesting against the provision of termination services, all of which can cause disruption of various services and/or distress to already vulnerable service users and others. Moreover, I fully accept that the passing of the 2024 Act was deemed necessary to protect service users and providers. I note that it defines safe access zones, and prohibits certain types of conduct in such zones. It also outlines the steps that An Garda Síochána (AGS) may take in relation to what they believe is prohibited conduct, in addition to their normal powers.
I accept that the safe and effective provision of a health service as provided for under the 2018 Act is a management function for the purposes of section 30(1)(b). I also accept that if the harms identified by the HSE as described above were to materialise, this would constitute a significant, adverse effect on the performance by the HSE of that management function. Accordingly, the question I must consider is whether the release of the individual numbers of terminations carried out at IEHG hospitals for the years in question could reasonably be expected to have such a significant, adverse effect.
It is worth noting the information concerning terminations that is already in the public domain. As I have outlined above, the locations of the various hospitals that provide termination services is already publicly available. Moreover, the Minister has published reports for the years in question which contain details of the total number of terminations notified each year, and broken down by the relevant sections of the 2018 Act, the month in which the termination was carried out, and the service user’s county of residence. For example, the 2023 Report shows that the number of terminations notified to the Minister as having been carried out in the various counties around Ireland in 2023 ranges from 47 in Leitrim to 3,645 in Dublin. It seems to me that there is ample information already publicly available to opponents of the 2018 Act. Indeed, it seems to me that the passing of the 2024 Act was a direct consequence of pre-existing concerns in relation to protests, given that one of the primary purposes of the 2024 Act was to create safe access zones around the relevant healthcare premises. It is reasonable to assume, in my view, that the Oireachtas deemed the 2024 Act to provide appropriate safeguards to enable providers to safely and effectively provide termination services and to ensure the well-being of their service users.
In light of the breadth of information already available, I find it very difficult to accept that the release of the individual numbers of terminations carried out at IEHG hospitals for the years in question could, of itself, reasonably be expected to give rise to such an increase in protests as to comprise a significant, adverse effect on the HSE’s ability to provide a safe and effective provision of a health service as provided for under the 2018 Act. I find, therefore, that the HSE has not justified its decision to refuse access to the information at issue under section 30(1)(b) of the Act.
Section 32(1)(a)(ii) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.
Generally speaking, section 32(1)(a) is a harm based exemption. Where an FOI body relies on this provision, it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure. In relation to a claim under section 32(1)(a)(ii), the FOI body should identify the relevant law and explain whether it is the enforcement of, the compliance with, or the administration of that law that is at issue. It should then describe the nature of the prejudice or impairment expected (the harm), and explain how release of the particular record is expected to cause that harm and why it is considered that the harm identified could reasonably be expected to occur. A mere assertion of an expectation of harm is not sufficient. Furthermore, while granting access to a record may be likely to have some effect, or while a record may relate to matters specified in paragraph (ii), it is not necessarily the case that disclosure could reasonably be expected to prejudice or impair the relevant specified matter.
The HSE noted that under sections 20(4) and 20(5) of the 2018 Act, the Minister must publish a report on notifications received under section 20 in such form and manner as he or she thinks appropriate and in doing so, must exclude from the report information that identifies, or that could reasonably lead to the identification of, the relevant service users and medical practitioners. It referenced the Department of Health’s publication of the Minister’s report and its comment that “[m]aterial published on information contained in notifications is restricted to limit the risk of identification in what is a private, confidential matter between patients and their doctors.” It argued that disclosing the information sought would contravene the provisions of section 20 of the 2018 Act and thus prejudice or impair the compliance with and the administration of this legislation.
The thrust of the HSE’s argument appears to be that the release of the information in the format sought would be in breach of section 20(5) of the 2018 Act which requires that information that identifies, or that could reasonably lead to the identification of, the relevant service users and medical practitioners must be excluded from the Minister’s published report.
For the purposes of the FOI Act, personal information is defined as information about an identifiable individual. For the reasons I have set out below in my consideration of section 37, which is concerned with the protection of third party personal information, I am satisfied that the release of the individual numbers of terminations carried out at IEHG hospitals for the years in question would not involve the disclosure of personal information about identifiable individuals. Accordingly, I am not satisfied that the information at issue identifies any service users and/or relevant medical practitioners or that it could reasonably lead to the identification of any such individuals. As such, I find that the release of the information in the format sought would not be in breach of section 20(5) of the 2018 Act. I find, therefore, that the HSE has not justified its refusal of the request under section 32(1)(a)(ii).
For the avoidance of doubt, I have also considered whether the release of the information would contravene any other aspect of section 20 of the 2018 Act. Section 20(1) provides that the medical practitioner who carried out the termination of pregnancy must keep a record in a prescribed form and manner of certain information. The medical practitioner must also, within 28 days of the termination having been carried out, forward a copy of that record to the Minister in such manner as may be prescribed. The prescribed form and manner is set out in the Health (Regulation of Termination of Pregnancy) Act 2018 (Notifications) Regulations 2018 (SI No. 597 of 2018).
Section 20(3) requires the Minister to prepare a report each year on the notifications received in the preceding year and must arrange for copies of the report to be laid before each House of the Oireachtas. Section 20(4) provides that the Minister must also arrange for the report to be published in such form and manner as he or she thinks appropriate, while section 20(5) provides that in preparing the report, the Minister must exclude from the report information that identifies, or that could reasonably lead to the identification of a relevant medical practitioner or service user.
Having carefully considered the matter, I am satisfied that the release of the information sought in this case would not contravene any other aspect of section 20 of the 2018 Act. Release would not interfere with the ability of medical practitioners to comply with sections 20(1), nor would release interfere with the Minister’s ability to comply with sections 20(3) or 20(4). While release would entail the release of information that the Minister has not, to date, included in any published reports, it would not, in my view, prejudice or impair the Minister’s decision as to the information he wishes to include in any future such report. In conclusion, therefore, I find that section 32(1)(a)(ii) of the FOI Act does not apply.
Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
In its decisions on the request, the HSE augured that disclosure of the individual numbers could possibly lead to the identification of individuals who have used the service. When inviting submissions during the course of the review, this Office’s Investigator asked the HSE to explain how this outcome could arise, given that the request seeks numbers rather than names or other details relating to any particular persons.
I do not prose to repeat in full the details of the submissions made by the HSE in respect of the applicability of section 37. I have taken this precaution due to the requirements of section 25(3) of the Act which provides that the Information Commissioner must take all reasonable precautions in the performance of his functions to prevent the disclosure of exempt information or matter that, if it were included in a record, would cause the record to be an exempt record. I can say, however, that the essence of its argument is that the release of the information sought could lead to the identification of individuals where the numbers of terminations notified are low. It said the individuals behind the statistics would easily identify themselves and they could also be identified by family, friends, or partners in whom they may have confided. It said this would cause great distress to the service users. It argued that it should align with how the Minister has mandated that numbers of terminations are to be reported.
As I have outlined above, the information at issue comprises solely the numbers of terminations notified to the Minister for the IEHG hospitals for each year. While the identities of the hospitals within the group that provide termination services is in the public domain, the information at issue comprises various numbers, disassociated from the specific hospitals. I accept that inferences may be drawn as to which numbers are likely to be associated with which hospitals based on size. Regardless, I fail to see how this would allow for the identification of individuals. I accept that certain service users may be in a position to identify themselves as referenced in the numbers but such information is already known to those individuals and to any people they may have confided in. The same can be said for the information published by the Minister. I do not see how the wider public would be able to identify service users or relevant medical practitioners from the release of the information at issue.
I am satisfied, in all of the circumstances, that disclosure of the individual figures will not involve the disclosure of personal information. I find that section 37(1) does not apply.
In conclusion, I find that the HSE has not satisfactorily shown that its decision to refuse access to the number of terminations carried out under sections 9 to 12 of the 2018 Act at hospitals in the IEHG Group, for the years 2019 to 2022 and to the date of the applicant’s request in 2023. The effect of this finding is that the HSE must grant the applicant’s request by providing the individual figures for each year. That being said, and in recognition of the fact that the applicant expressly stated that she was seeking only aggregate number of terminations performed each year in the IEHG as a whole, I am satisfied that it is open to the HSE to provide the applicant with the aggregated number which will satisfy the request. While the Act does not require the creation of a record to grant a request, there is nothing in the Act which prohibit the creation of a record if it meets the purposes of granting the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision to refuse the request under sections 15(1)(a), 15(1)(d), 30(1)(b), 32(1)(a)(ii) and 37(1). I direct it to grant access details of the aggregate number of terminations carried out under sections 9 to 12 of the 2018 Act at hospitals in the IEHG Group for the years 2019 to 2022 and to the date of the applicant’s request in 2023, by releasing either the individual figures for each Hospital for each year or the aggregate total for each year.
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.
Stephen Rafferty
Senior Investigator