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Case Number: 160306

Whether the Hospital was justified in refusing to release various records relating to the Hospital's Board and various sub-committees on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Hospital

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

Background

On 9 May 2016, the applicant made a detailed multi-part request to the Hospital for various records from 2000 to 2005 relating to the Hospital's Board and various sub-committees, including;

all records from 2000 to 2005 describing the membership of all subcommittees of which two named individuals were members, how the subcommittees were appointed, all meeting minutes for the subcommittees and all correspondence to and from those subcommittees,
all records from 2000 to 2005 describing the membership of the Hospital's ethics committee, how the committees were appointed, all meeting minutes for the committees and all correspondence to and from the committees,
all records from 2000 to 2005 relating to potential, proposed or actual drug trials carried out at the Hospital, including all minutes of Board meetings and subcommittees at which potential, proposed or actual drug trials were discussed, all correspondence to and from the Hospital relating to potential, proposed or actual drug trials, and all briefing documents produced by or for the Board or any subcommittee relating to potential, proposed or actual drug trials, and
all correspondence to or from the Hospital and any church or other patron body from 2000 to 2005, including all correspondence between the Board or any of its subcommittees and the Sisters of Mercy, the Catholic Archdiocese of Dublin, the Catholic Nurses Guild of Ireland and/or the Society of St. Vincent de Paul.

The Hospital did not issue a decision on the applicant's original request within the prescribed time period provided for in the FOI Act. On 9 June 2016, the applicant sought an internal review of the Hospital's deemed refusal of his request. On 14 June 2016, the Hospital wrote to the applicant and informed him that his request may fall to be refused either on the ground that it contained insufficient particulars to enable the records sought to be identified by the taking of reasonable steps or that the processing of the request would, by reason of its scope, cause a substantial and unreasonable interference with, or disruption of, the work of the Hospital. It explained that the purpose of the letter was to offer the applicant an opportunity to refine or amend his request so that it no longer fell to be refused on the grounds cited and that it would be happy to assist in his endeavours to do so, if he wished.

The Hospital and the applicant subsequently engaged in an exchange of emails concerning the possible refining of the request. However, no agreement was reached on the wording of a revised request and the applicant sought a review by this Office, on 5 July 2016, of the Hospital's refusal of his request. Following contact with this Office, the Hospital issued an effective position on 22 July 2016, in which it relied upon the provisions of sections 12(1)(b), 15(1)(b) and 15(1)(c) of the FOI Act for refusing the request. On 25 July 2016, the applicant stated that he required a review of that decision.

I have decided to conclude this review by way of a formal binding decision. In carrying out this review, I have had regard to the correspondence between the Hospital and the applicant as set out above and to the correspondence between this Office and both the Hospital and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the Hospital was justified in refusing the applicant's request for records relating to the Hospital's Board and various subcommittees.

Analysis and Findings

While the Hospital cited three different sections of the FOI Act as a basis for refusing the applicant's request, it seems to me that section 15(1)(c) is of most relevance in this case. That section allows a FOI body to refuse to grant a request if it considers that 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, its work, including disruption of work in a particular functional area. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c).

The applicant argues that the Hospital was not justified in refusing the request in the manner it did. The main thrust of his argument appears to be that the Hospital failed to offer meaningful assistance under section 15(4) to allow for the submission of a revised request which would not fall to be refused under section 15(1)(c). While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office considers that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is not sufficient for the purposes of compliance with the section, given the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests.

As such, this Office considers that before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

As I have outlined above, in this case the Hospital and the applicant engaged in an exchange of emails concerning the possible refining of the request. In his email of 14 June 2016, the applicant asked the Hospital to clarify which parts of his request were a cause of concern. He stated that it was difficult to refine the request without knowing where the problem was. In its response of 22 June 2016, the Hospital stated that it would be necessary to contact all individual hospital departments and managers to search for the information sought, and that this would take a considerable amount of time. It again requested that the applicant narrow his request on the ground that it was too broad. In his reply, the applicant again asked the Hospital to indicate which aspects of his request would be too onerous to address.

Section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources. The original request was, as I have described above, a detailed multi-part request.

While is is clear that the Hospital offered to assist the applicant in amending his request in this case, it is a close call, in my view, as to whether it could be said to have provided a reasonable level of assistance. While it informed the applicant that it would be necessary to contact all individual hospital departments and managers to search for relevant records, it offered no further suggestions as to how to amend the request. Given the knowledge the Hospital holds as to its records management practices, it was clearly better placed than the applicant to offer more practical suggestions as to how the request may have been amended.

On the other hand, while there is an onus on FOI bodies to provide assistance, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. It is also the case that FOI requests must contain sufficient particulars to enable the identification of the records sought by the taking of reasonable steps.

On a plain reading, the request was, in my view, voluminous. The request was not merely limited to minutes of meetings of specified committees. Rather, it also encompassed a request for all records relating to a range of matters. For example, the request sought all records over a five year period relating to potential, proposed or actual drug trials carried out at the Hospital. A request which seeks access to all records relating to a matter on which there may be a substantial volume of records held or which requires extensive enquiries to identify all relevant records will invariably run the risk of being regarded as voluminous.

While the Hospital offered to assist the applicant in amending the request, it appears that he offered no suggestions as to how this might be achieved. I note, for example, that in his application for review he questioned whether there was any part of his request that the Hospital may have been capable of answering. It seems to me that this was certainly something that he could have explored further with the Hospital. However, I am also cognisant of the fact that FOI bodies should not be compelled to carry out the very work they are seeking to avoid by refusing a request under section 15(1)(c) before they can be said to have offered a reasonable level of assistance. In this case, I accept that it was difficult for the Hospital to suggest amendments to the original request without having any real sense of what level of information might satisfy the applicant.

Having regard to the nature of the engagements between the parties, while I consider that the Hospital could have offered more detailed advice to the applicant as to how he might amend his request, I am satisfied, on balance, that it complied with the provisions of section 15(4) in this case.

However, that is not the end of the matter as I must now consider whether the Hospital was justified in deciding to refuse the applicant's request under section 15(1)(c). In making its argument to this Office, the Hospital primarily focused on the matter of Hospital committee documentation. It stated that the two named individuals were both members of the Hospital's Board (the Board) in the time period specified and that one of the named individuals was also a member of the Hospital's Ethics Committee (EC) and Research Ethics Committee (REC). It stated that the Hospital Board meets every month, the REC meets eleven times per annum and the EC meets on average five to six times on average per annum. It stated that clinical trials/research studies are only discussed at REC meetings, with approximately eight trials/studies discussed at each meeting. The Hospital contended that the documentation submitted for review for each trial/study would differ considerably, and could run up to several thousand pages.

It said that members of the Board are given a large amount of documentation to review in advance of each meeting, including documents of a financial nature, board on board reports, estate and facilities reports and general correspondence. The Hospital estimated that it would take one full day to review and retrieve one set of REC committee minutes and all accompanying documentation. Scaling that estimate to the five year period specified by the applicant, the Hospital estimated that it would take 55 days to review five years of minutes of REC meetings alone.

In my view that the Hospital's estimate in relation to the time it would take it process records relating to REC meetings is reasonable. Not only does it appear that there would be many records relating to such meetings, it is very likely that one or more of the other exemptions in the Act would have to be considered before a decision could be taken on release of records. I am satisfied that processing that aspect of the request alone would cause a substantial and unreasonable interference with or disruption of the work of the Hospital. Having regard to the fact that the Hospital's estimate only applies to the records relating to one of the committees within the scope of the applicant's request, I think it is reasonable to conclude that the total time it would take the Hospital to process every part of the request would be significantly in excess of the 55 days estimate that applies to REC records.

Accordingly, having regard to the volume of records that would have to be examined to process the applicant's request and to the need to examine the records for possible release, I accept the Hospital's contention that granting the request would cause a substantial and unreasonable interference with, and disruption of, work in the Hospital. I find therefore that the Hospital was justified in its decision to refuse the request under section 15(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital in this case.

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.

 

Stephen Rafferty,
Senior Investigator