Whether the Hospital was justified in refusing access to the minutes of three meetings of its Infection Prevention and Control Committee under sections 30(1)(a), 30(1)(c) and 37(1) of the FOI Act

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 31 January 2017 the applicants, through their solicitors, submitted a request to the Hospital for copies of the minutes of a meeting of its Infection Prevention and Control Committee (IPCC) held prior to 25 October 2011 and the minutes of the next two meetings held after that date.

By letter dated 4 May 2017, the Hospital refused the request under section 30(1)(c) of the FOI Act on the ground that release of the minutes would affect the Hospital's ability to conduct its business. The applicants sought an internal review of that decision on 19 May 2017. On 12 June 2017, the Hospital affirmed its original decision under section 30(1)(c), and also relied on section 30(1)(a) on the ground that release would have an adverse effect on the Hospital performing its management function. On 16 August 2017, the applicants sought a review by this Office of the Hospital-™s decision.

During the course of the review, the Hospital made a submission to this Office, in which it also sought to rely on section 37(1) to refuse access to part of one of the records at issue on the ground that release would involve the disclosure of personal information relating to an identifiable individual.

In conducting this review I have had regard to the Hospital-™s communications with the applicants on the matter and to the communications between this Office and both the applicants and the Hospital. I have also had regard to the content of the withheld records that were provided to this Office by the Hospital for the purposes of this review.

Scope of the Review

The scope of this review is whether the Hospital was justified in refusing access to the minutes of three IPCC meetings under sections 30(1)(a), 30(1)(c) and 37(1) of the FOI Act.

Processing of the request
I feel it necessary to comment on certain shortcomings in how the Hospital dealt with this FOI request. First, the Hospital did not respond to the applicants' original request of 31 January 2017 until 4 May 2017, well outside the time-frame specified in the FOI Act of 20 working days. While I note that the Hospital has explained that it was dealing with a significant backlog of requests at the time, it is unclear as to whether or not the Hospital issued an acknowledgement of receipt of the request which should explain that failure to issue a reply within the statutory time-frame is deemed to be a refusal of the request and that an automatic right to apply for internal review applies.

Secondly, in relying on sections 30(1)(a) and 30(1)(c) of the FOI Act, the Hospital gave no consideration to the mandatory public interest test set out in section 30(2) in either its original decision or its decision on internal review. A claim for exemption under these sections of the Act cannot stand without the relevant public interest tests being considered.

I refer the Hospital to the website of the Central Policy Unit of the Department of Public Expenditure and Reform which contains, among other things, sample letters for use by FOI bodies and a detailed manual on processing FOI requests.

Preliminary Matters

Before I address the substantive issues, I would like to draw the attention of the parties to the review to a number of points.

Firstly, while the applicants have provided a detailed explanation as to why they are seeking access to the records at issue, I must draw their attention to section 13(4) which provides that, subject to the provisions of the Act, the reasons a requester gives for making a request must be disregarded.

Secondly, release of a record under FOI is generally considered to be release to the world at large as the Act places no restrictions on the uses to which a record released under FOI may be put.
Finally, it is important to note under section 22(12)(b), a decision to refuse a request is presumed not to have been  justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". In this case, therefore, the onus is on the Hospital to satisfy me that its decision to refuse the request was justified.

Analysis and Findings

Section 30(1)(a)
Section 30(1)(a) of the FOI Act provides for the refusal of a request where the body considers that release of the records sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

Where an FOI body relies on section 30(1)(a), it should identify the potential harm to the relevant function specified in paragraph (a) that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. A mere assertion of an expectation of harm is not sufficient. The body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged, i.e. it should show the link between granting access to the record concerned and the harm identified. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

In its submission to this Office, the Hospital has identified a number of harms it considers could reasonably be expected to arise by the release of the records at issue.

Firstly, it argued that the release of the records could reasonably be expected to prejudice the effectiveness of the IPCC meetings and the procedures or methods employed by the Hospital for conducting them by deterring discussions regarding products/equipment from various companies, specific patient hazards, data to be submitted to the Health Protection Surveillance Centre, and reviews of reports and trends from the Risk Management Committee. It argued that to have a robust process to investigate care and service delivery issues, the IPCC must actively challenge, question and debate all methods of infection prevention and control and that this requires full and frank expression of professional opinions. In a supplementary submission, the Hospital stated that its argument does not refer to the obligations of staff to engage in full and frank discussion. Instead, it appears it is concerned that the release of minutes containing full and frank discussions about suppliers and their products/equipment and the effect such release might have on the business of those suppliers would impede open and frank discussions.

Secondly, it argued that release of the records in their current form would give an unbalanced view of the Hospital's ability to manage infection prevention and control. It stated that the IPCC regularly reports to the Hospital Board and adheres to national standards and that it also submits data to the Health Protection Surveillance Centre (HPSC) in relation to notifiable diseases which is used to investigate cases in an effort to prevent the spread of infection and further cases. It argued that the release of the minutes in isolation could reasonably be expected to impact on the HPSC's ability to identify early outbreaks or monitor diseases.

I should say at the outset that the Hospital appears to have taken a position that minutes of IPCC meetings should be protected as a class. As will be clear from my description of the manner in which section 30(1)(a) should be applied, this is not an appropriate position to take. As a harm based exemption, the Hospital must have regard to the contents of each record in determining whether the exemption applies.
I fully accept that for the IPCC to operate effectively, its members must be able to engage in full and frank expression of professional opinions on matters for which they have responsibility. I also accept that the nature of the IPCC is such that it can be said to engage in conducting investigations, tests, inquiries etc.  However, I fail to see how the release of the records at issue could reasonably be expected to deter members of the IPCC from engaging in full and frank expression of professional opinions on important matters relating to infection prevention and control, regardless of any concerns they might have on the effect that the disclosure of such discussions might have on the businesses of the relevant suppliers. The Hospital has not explained why the members of the IPCC would be inclined to allow the interests of suppliers to impede their consideration of issues relating to infection prevention and control, nor is it clear to me that the release of the records could reasonably be expected to give rise to such an outcome.

The second argument is, in essence, that the contents of the records might be misunderstood or might not give a complete picture of how the Hospital manages infection prevention and control. The mere fact the records may not fully capture the details of the manner in which the Hospital manages infection prevention and control does not, of itself, mean that its ability to do so might be somehow prejudiced. I should also explain that this Office takes the view that the possibility of information being misunderstood is not a good reason to refuse access to records under FOI. In any event, it would be open to the Hospital to put further information in the public domain, if that were necessary, to clarify matters.  I should also add that the Hospital have simply not explained how the release of the records could reasonably be expected to impact on the HPSC's ability to identify early outbreaks or monitor diseases.

The Hospital made a number of other arguments under section 30(1)(a) although they do not appear to be arguments that are relevant to that exemption. It argued that the release of the records could reasonably be expected to have a significant adverse effect on the Hospital in performing its management functions and could also reasonably be expected to damage established working relations with external suppliers by limiting essential open dialog/communications. The first of these arguments is clearly a claim for exemption under section 30(1)(b). However, as the Hospital provided no further explanation as to why it considers it reasonable to expect such harm to arise, apart from the arguments above which I have addressed, I find that the Hospital cannot rely on this argument as an appropriate ground for refusing access to the records sought. Neither has the Hospital explained why it considers that the release of the records would limit essential open dialog/communications with external suppliers. Having regard to the provisions of section 22(12)(b), I find that the Hospital has not justified its decision to refuse access to the records under section 30(1)(a).

Section 30(1)(c)
Section 30(1)(c) provides for the refusal of a request where the body considers that release of the records sought could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

In its submissions, the Hospital stated that is was in continuous negotiations with "National Bodies" and the HPSC and a vast number of companies that supply the hospital with products from household equipment to highly technical computerised theatre equipment, all of which is subject to IPCC monitoring. The Hospital asserted that behind the majority of agenda items discussed and actions agreed within the minutes there "may be" named companies that supply the Hospital.
It seems to me that the Hospital is again arguing that all minutes of IPCC meetings should be protected as a class. Clearly, this is not a sustainable argument. For the section to apply, the Hospital must be able to satisfy this Office that the release of the records at issue could reasonably be expected to disclose positions taken etc. The Hospital has not done so. Rather, its argument appears to be that the records should not be released because such records often contain information that affect parties or organisations with whom the Hospital regularly negotiates.

Having examined the records at issue, I am not satisfied that any of the information identified could reasonably be said to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Accordingly, I find that the Hospital has not justified its refusal of access to the records under section 30(1)(c) of the FOI Act.

Section 30(2)
As I find that section 30(1)(a) and (c) do not apply, I do not consider it necessary to consider the public interest balancing test as set out in section 30(2) of the FOI Act.

Section 37(1) - Personal Information
The Hospital argued that information contained in the minutes of the meeting of 18 October 2011 concerning an MHRA (the British Medicines & Healthcare products Regulatory Agency) alert in relation to certain medical equipment is exempt from release under section 37(1) as disclosure of the information would involve the disclosure of personal information relating to a third party. For the purposes of the FOI Act, personal information is information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or their family or friends or is held by an FOI body on the understanding that it would be treated by it as confidential.
I have carefully examined the information at issue. While it explains that the alert highlighted the findings of an inquest which found that a patient's death was caused by failure to decontaminate a particular piece of medical equipment appropriately, it then goes on to discuss matters relating solely to the Hospital. There is no further information relating to the patient in question. The Hospital argued that the death under the particular circumstances was rare and makes the death recognisable to many people within the health sector and in the area in which the patient lived.

In my view, there is insufficient information in the record relating to the patient to allow me to find that the disclosure of the information would involve the disclosure of personal information relating to an identifiable individual. It is worth noting that the MHRA previously published the alert in question with the description of the circumstances as outlined in the record at issue. I find that section 37(1) does not apply.
In conclusion, therefore, I find that the Hospital has not justified its decision to refuse access to the records at issue under sections 30 or 37 and I direct that the records sought be released to the applicants.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital's decision to refuse access to the records sought under sections 30(1)(a), 30(1)(c) and 37. I direct the release of the records.

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