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Ms Oonagh Smyth and The Health Service Executive (FOI Act 2014)

Case Number: 160203

Whether the HSE was justified in refusing access to further records concerning its monitoring of compliance by consultants with the public/private mix requirements of their contracts

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 28 January 2016, the applicant made an FOI request, for the following information, which she asked to be supplied electronically in so far as possible:

"1. All information held regarding HSE consultants' adherence to their contracts in respect of public vs private practice for 2013, 2014 & 2015 for each Acute Hospital in the country.

This includes the name of consultants (by name or speciality or sub-speciality) in each hospital, who were non-compliant with their contractual limits on private practice (making clear their contract type), to what extent they were non-compliant and what action was taken as a result by a Hospital Group Chief Executive Officer/Chief Officer or Community Health Organisation or the relevant senior manager prior to the establishment of the Hospital Groups and Community Health Organisations.

In presenting the information can you please provide it broken down by each Acute Hospital and with details of each permanent consultant by -
(a) Consultant Name
(b) Speciality and sub-speciality
(c) Consultant Contract (e.g. Consultant Contract 1997, Consultant Contract 2008)
(d) Type or category of contract (e.g. Category I, Category II, Type A, Type B, Type B*, Type C) (including permitted level of private practice i.e. 80:20 or 70:30)
(f) Percentage deviation from level in contract
(g) Numbers of notifications issued to the consultant regarding the exceeding of the permitted level of private practice

2. Can you please also provide all "overall status reports" (anonymised) for each hospital prepared for HSE monitoring and for each quarter of (2013, 2014 & 2015), detailing
(h) total number of consultants who have been identified in breach of their contract - Phase 1
(i) total number of consultants who have been formally notified of their con-compliant status (1) yet to meet a Clinical Director (CD); (2) who have met a CD & have been notified that their 6 month correction period has commenced - Phase 2
(j) total number of consultants who's (sic) six month period has elapsed (1) who have not yet met with a CD; (2) who have met with a CD, to commence a further 3 month correction period - Phase 3
(k) Total number of consultants who (1) have been identified as remittance to be paid; (2) total number of consultants who have been issued formal notice to remit private practice fees to the Research & Study fund - Phase 4
(l) (1) Total value of remittance fees issued to consultants, for each quarter (2) total value of fees remitted to the private research fund, for each quarter - giving Financial Value (for each quarter/year to date."

There was no part (e) to the request.

The HSE issued its decision on 29 February 2016. It refused access to the information relevant to part 1 of the request under section 37 of the FOI Act (the provision exempting personal information). In relation to part 2 of the request, it released five quarterly reports, dating from January 2013 to the end of March 2014, entitled "% of Consultants Compliant With Public:Private Mix Ratio". It also released some other documents that it said would help give a better understanding of the reports. It refused access to further such reports under section 15(1)(a), saying that the records concerned "cannot be found" because the details requested "were not collated".

The applicant sought an internal review of this decision on 9 March 2016. On 1 April 2016, the HSE issued its internal review decision. It upheld the application of section 37 to part 1 of the request, and said that a further provision (section 30, which is concerned with performance of an FOI body's functions relating to management) is also applicable. It also said that relevant details were not recorded on any database. In relation to part 2, it said it had released all relevant "overall status reports" it held. The HSE said that these reports do not contain the level of detail sought at part 2 of the request and thus refused access to the records requested at part 2 on the basis that they did not exist, rather than because they had not been collated.

On 6 May 2016, the applicant sought a review by this Office of the HSE's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, the HSE, and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the HSE has justified its refusal to fully grant the applicant's request.

Although the May 2016 application to this Office referred to the refusal of records "from 2012 to the present", my review can only consider what was sought in the original request i.e. relevant details for 2013, 2014 and 2015.

The review cannot consider, or make findings on, the extent to which the HSE monitored and followed up on any breaches of consultants' contracts. It follows that the review cannot consider, or make findings on, whether or not the HSE should have created records of the sort requested in this case.

Findings

Whether the records sought are held/can be compiled
The HSE's description of how consultants' compliance with their contracts is, and has been, monitored at national and/or local level during the relevant time frame is quite lengthy and I do not intend to repeat it in this decision. In summary, it appears that certain monitoring was done at national (HSE) level up to the first quarter of 2014, and was expected to be done at local level from then onwards. It is not clear to what extent this local monitoring was in fact carried out.

Part 1 of the Request
No records relevant to parts 1 (a) to (g) of the request have been released. While the original and internal review decisions referred to sections 30 and 37 of the FOI Act, the HSE has confirmed to this Office that this was based on a general appraisal of the type of information requested. It says that it did not gather all relevant records.

The application of provisions of sections 30 and 37 of the FOI Act, and the consideration of the public interest test, must have regard to the content of the records being withheld under these exemptions. In all likelihood, consideration of the public interest would also, in a case like this, have to take account of the circumstances of each case of apparent non-compliance.

Accordingly, without it first having been established what records within the scope of the review are held, it is not possible for this review to consider the relevance of sections 30 or 37 of the FOI Act. Generally speaking, when an FOI body has refused a request without having regard to the relevant records, I would annul the refusal and remit it to the FOI body for fresh consideration. This would require the body to gather any relevant records in the first place. Only then would it go on to consider their contents in making a fresh decision on the request.

However, the HSE's decisions do not make it particularly clear to what extent relevant records exist at all. Accordingly, for the purposes of this review, the Investigator asked if the requested records exist in the first place. If they do not but where the request covers data contained in more than one record held electronically, consideration must be given to whether the records containing the requested information can be compiled where it is possible to do so by the taking of reasonable steps (section 17(4), which I explain further below, refers). Alternatively, the requested information may exist elsewhere, such as in various records on paper files. In this regard, I note that the right of access under FOI is primarily to records as opposed to information held.

The HSE says that "no returns were sought or made nationally regarding individual consultants". It has also told this Office that it does not hold any database containing the details sought at part 1 (a) to (g) of the request. While certain raw data could be generated locally from HIPE (the Hospital In Patient Enquiry database) in relation to part (f) of the request, it seems that such data must be further processed (or in the HSE's words, "validated") at a local level in order to generate accurate details of relevance to the request. I understand that, in producing the reports that have already been released, validation of the relevant raw data was also required. The HSE says that, in some cases, this validation process requires the retrieval of patient charts, some of which are paper based.

While an FOI body is not generally required to create a record in order to comply with a request, section 17(4) requires the creation of a record containing all relevant information that can be extracted from a database by taking "reasonable steps" i.e. "steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course". In this case, while it is possible to extract certain raw data, that raw data is not the information that has been requested. Rather, that raw data requires further validation, or analysis or processing, in order to provide the requested information. I do not consider the process of "validating" information that has been extracted from a database to be encompassed by the requirements of section 17(4).

However, I understand that details regarding some, and indeed perhaps all, of parts 1(a) to (g) of the request could be obtained from individual consultant personnel files, most of which are in paper form. In this regard, the HSE says that there are 1,516 posts in the acute sector (Voluntary and Statutory), covering 50 public acute hospitals. It also says that, for various reasons, the number employed would be higher than the actual number of posts

Part 2 of the Request
While a number of records of general relevance to part 2 of the request have been released, they do not contain the precise level of detail sought by the applicant at parts (h) to (l) of her request. The HSE has told this Office that hospitals never recorded such information. It has suggested that the details sought by the applicant are based on a 2015 draft reporting template, which the HSE says was not in use for the time frame covered by her request.

It is the HSE's position that relevant details could be extracted from HIPE but would have to be validated, or otherwise gathered from individual consultant personnel files.

Section 15(1)(c)
Section 15(1)(c) of the FOI Act provides that a request may be refused where "in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.

Section 15(4) provides that section 15(1)(c) shall not be applied unless the FOI body has assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within section 15(1)(c).

According to the above, the HSE's position appears to be that stand-alone records containing the requested information do not exist in their own right, and that it is not possible to extract relevant information from its databases using the "reasonable steps" envisaged by section 17(4). Rather, information of relevance to some or all aspects of the request could be extracted at a local level from databases and/or paper files, and further examined, analysed and validated in order to generate accurate details of relevance to the request. However, the HSE says that this would cause a substantial interference with its work, and that with hindsight, it should have refused the request under section 15(1)(c) of the FOI Act from the outset.

In the circumstances, I consider it appropriate to annul the HSE's decision on this request, and remit it to the HSE for fresh consideration. In order to preserve the HSE's right to refuse some or all of the request under section 15(1)(c), I am not directing it to gather and consider the individual records in this instance. If relying on that provision, the HSE must comply with section 15(4). Furthermore, any reliance on section 15(1)(c )in a decision is subject to the usual rights of internal and external review.

This Office told the applicant that this review might be decided on these lines. She did not reply to the email concerned. Given the extent of the information sought, the implications for resources and the fact that, according to the HSE, similar requests have been received from RTÉ, I would expect the applicant to contact the HSE with a view to clarifying the nature of the records being sought and the extent to which she wishes to pursue this particular request. It seems to me that contact between the parties under section 15(4) or otherwise would go some way towards ensuring that the matter is dealt with efficiently without unnecessary confusion or expenditure of valuable time or other resources.

Without prejudice to the HSE's fresh decision making process, it seems to me that, if it is satisfied that it can obtain records containing some or all of the requested information without substantial and unreasonable interference with its work, the HSE should do so. It would then have to proceed to consider the content of such records under sections 30, 37 or any other "substantive" provision of the Act it considers relevant including whether it is possible to release redacted versions of any records.

The HSE has also pointed out that the request covers all consultants yet only those on B/B*/C contracts (contracts introduced in 2008) contain requirements for public/private work. Therefore, if it is indeed the HSE's position that it does not hold details relating to consultants other than those on B/B*/C contracts and/or details held by Voluntary Hospitals (which are subject to FOI in their own right), and/or any other of the requested details, it should say so clearly in its decision to the applicant and cite the appropriate exemptions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision on the applicant's request, and remit the request to it for fresh consideration.

Right of Appeal

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.

 


Elizabeth Dolan
Senior Investigator