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The Freedom of Information Act and the Health Service (19 Nov 1997)

The Freedom of Information Act and the Health Service (19 Nov 1997)

The following speech was delivered by the Information Commissioner Designate, Mr. Kevin Murphy, on the 19 November 1997, to the Irish Health Services Management Institute, at Beaumont Hospital, Dublin.

I am very pleased to have this opportunity this evening to meet such a diverse group of health service personnel and to discuss with you the implications of the Freedom of Information Act. I am grateful to the Irish Health Services Management Institute for having invited me to address you. What I have to say this evening falls into four separate areas:

firstly, I intend to give a short overview of the main provisions of the Act and of the overall thrust of the Act;

secondly, I would like to say something on the role of the Information Commissioner;

thirdly, I will have some comments to make in relation to the need for adequate preparations for the introduction of Freedom of Information and,

finally, I will have some comments on how FOI might impact on particular areas of the health services.

I appreciate that not all of you operate within health board management. Strictly speaking what I have to say, therefore, might not impinge on you directly at this stage. However, you are no doubt aware of the ongoing arrangements for the restructuring of the health services in the present Eastern Health Board region. There is the strong probability, therefore, that the issues which I am about to address will impinge on the Public Voluntary Hospitals when that restructuring is complete.

Thrust and Provisions of Act

The FOI Act has been variously described as heralding "the end of the culture of public service secrecy" and as a "radical departure" into a brave new world of public service openness and transparency. I know that senior health service managers tend not to be impressed with hyperbole; nevertheless, it is a fact that the enactment of the FOI Act does mark a radical departure from one style or culture of public service to another. But the FOI Act must not be seen in isolation. It is but one aspect - though perhaps the most central one - of a wider process of reform in the area of government and public service generally. Other significant manifestations of this reform process would include : the Public Service Management Act which provides for a new management structure for the civil service; the Ethics in Public Office Act which requires politicians and public servants alike to make disclosures of personal interests which may affect them in the performance of official duties; the proposed amendment of the Ombudsman Act which will significantly extend the remit of the Ombudsman and give him additional powers (for example I expect that, as Ombudsman, the remit of my Office will in the future include the Public Voluntary Hospitals, and bodies which receive 50% or more of their funding from the Exchequer); there was the recent referendum in relation to easing the rule on Cabinet confidentiality; and of course there is also the ongoing Strategic Management Initiative whose objective is the delivery of better government generally.

I am aware also that in the health area of activity there are a number of important developments underway, or about to be launched, which will significantly impact on the delivery of health care to the community. Included amongst these developments would be the requirement - created by the Health (Amendment)(No.3) Act 1996 - for each health board to adopt an annual service plan; to some extent this is the equivalent of the SMI requirement on government departments and offices to publish statements of strategy. There is the establishment of the Office for Health Gain and the Office for Health Management and, as I have mentioned earlier, there are the ongoing arrangements for the restructuring of health services in the present Eastern Health Board region. What all of these developments have in common, I feel, is a focus on the needs of the public (whether as clients, patients, customers) and a related respect for the right of the public to understand, and contribute to, the development of services which affect them.

The Freedom of Information Act seeks to replace the culture of secrecy within the public service with a culture of openness. There are a number of aspects to this. The first is that the Act is clearly and deliberately predisposed - one could say biased - in favour of achieving the greatest possible access by members of the public to official information subject only to necessary exceptions to safeguard the public interest and the right of privacy. The Act has an unusually extended Long Title which summarises and encapsulates all that the Act is about. It is worth quoting from this Long Title:

"An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and theright to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such Bodies relating to that right and of the operation of this Act generally (including the proceedings of such bodies pursuant to this Act) and, for those purposes, to provide for the establishment of the Office of Information Commissioner and to define its functions, to provide for the publication by such bodies of certain information about them relevant to the purposes of this Act, to amend the

Official Secrets Act, 1963, and to provide for related matters".

You will note that the Act envisages access to records being provided "to the greatest extent possible consistent with the public interest and the right to privacy". The Act creates a positive right of access to records held by public bodies. Obviously there are some exemptions and some qualifications in relation to this right. But I believe the overall intention is clear. The public will now have a positive legal right of access to records held by public bodies.

The Act clearly places the burden of justifying the refusal of an information request on the body concerned. Indeed, where a third party objects to a public body's decision to release information that was obtained in confidence, or is commercially sensitive, or is of a personal nature, the onus is on that third party to convince the Information Commissioner that the decision was not justified. Furthermore, the Act imposes a duty on public bodies to help people to access records. The Information Commissioner will be looking to see that public bodies do make genuine efforts to help people access information. Equally, when it comes to the operation of the internal review of decisions - which bodies have to carry out under the Act - the Commissioner will be concerned to see that these reviews involve a genuine reconsideration of the original request. All in all, there will be a very strong presumption that records must be made available except where it can be shown that the record belongs to an exempt category. Even where the record does belong to an exempt category, there remains the possibility (subject to some exceptions) that it should be released where this would on balance be in the public interest.

Turning now to the specific provisions of the Act, it is noteworthy that much more is involved than simply responding to requests for access to records. Members of the public will have the following new legal rights conferred on them:

1. The right to seek access to information held by public bodies (including information in relation to themselves);
2. The right to have personal information held by a public body amended where it is incorrect or misleading (and this right applies regardless of whether the material is held in a manual or a computer record);
3. The right to seek reasons for decisions affecting themselves.

In relation to these rights, health boards and hospitals will be reacting to approaches from the public. However, the Freedom of Information Act also requires public bodies to be pro-active in a number of important respects. In particular, the Act requires the publication of a range of information in relation to each relevant public body. This includes:

• publication of information material in relation to the structure, functions and operation of the particular body;
• publication of the classes of records held by the particular body and of arrangements for enabling access to these records;
• publication of the rules, procedures, guidelines and precedents relied upon by each body in the conduct of its business.

In the cases of health boards, all of this information must be published and available to the public by the date of application of the Act to the Boards i.e. 21 October 1998.

There is an implicit requirement throughout the Act that public bodies be generally helpful to the public with a view to maximising the take up of rights under the Act. However, part of the Act is somewhat more explicit in this regard. Public bodies are required to provide "reasonable assistance to a person who is seeking a record under the Act". This might mean, for example, helping the requester to frame a request in such a way as to enable the request to be met. More specifically, each public body is required to have particular regard to the requirements of disabled people wishing to exercise their rights under the Act. The Act sets out a range of practical requirements in relation to the acknowledgement of requests; the timescale for the processing of requests; requirements to transfer the request to a different Body where the records are held by that body and so on.

The Act also provides for a system of internal review in cases where a request has been refused. Where a request for such a review is made, the review must be conducted by an officer at a more senior level than the officer taking the initial decision. In the normal course it is only where a request has been refused at the review stage that the matter may be raised with the Information Commissioner.

Role of the Information Commissioner

The Freedom of Information Act creates the Office of Information Commissioner and confers a number of specific functions on the Commissioner. These functions may be summarised as follows:

• to review (on application) existing decisions in relation to FOI requests and to make binding new decisions;
• to keep the operation of the Act under review with a view to ensuring maximum compliance (this will involve investigation of the operation of the Act both generally and in relation to particular bodies);
• to foster an attitude of openness among public bodies by encouraging the voluntary publication by them of information on their activities which goes beyond what they are obliged to publish under the Act;
• to prepare and publish commentaries on the practical operation of the Act. (These may be based on the experience of the Commissioner arising from cases already handled);
• to publish an Annual Report which will be laid before the Houses of the Oireachtas.

The Information Commissioner is often referred to as the "independent watchdog" to ensure that the public's right to know is upheld and not in any sense blocked. As with all such "watchdogs", people will wish to know whether the watchdog " has any teeth". In fact this particular watchdog has very substantial powers which in many respects are similar to, but go beyond, those of the Ombudsman. This includes powers:

• to require the provision of information on the basis that it is relevant to a review or investigation;
• to require the attendance of witnesses;
• to remove records from a public body and retain them for a reasonable period;
• to enter any premises occupied by a public body.

Furthermore, decisions of the Commissioner are binding subject only to being referred to the High Court on a point of law.

An interesting feature is that the Act explicitly authorises the Commissioner to seek to effect a settlement between the parties as an alternative to a formal decision being made by him. For my own part, as Information Commissioner designate, I would very much intend to operate this legislation in a sensible and pragmatic way. I would hope to conduct business with the boards and hospitals on the basis of flexibility and informality to the greatest extent possible consistent with the nature of the Commissioner's Office. However, this approach will only work successfully where, in turn, public bodies adopt an open and positive attitude to the provisions of the Act. And even where they do so, there will inevitably be many situations where, as Commissioner, I will have to rely on my formal powers to make a binding decision.

Preparations for Freedom of Information

I think it is fairly self evident that all public bodies will face considerable challenges in the months ahead if they are to ensure the smooth introduction of the Freedom of Information Act. I recognise that in the case of the health service providers this task may be more than usually difficult. This is because of the sensitive areas of service involved and also because health services operate from large numbers of centres (hospitals, clinics, health centres, day care centres, administrative offices) spread over large geographical regions. Accordingly, detailed preparations are essential to the successful implementation of the Act.

At this point the main preparations required fall into three broad categories:

publications, record management and training.

Publication Requirements

Two key documents must be produced and published in advance of the

application of the Act. The purpose of these documents is to facilitate the public in the exercise of their Freedom of Information rights. In order to achieve this, the material concerned must be in the public domain, insofar as the healkth boards are concerned, well in advance of 21 October 1998. I have already referred to these publications but it is worth mentioning again, however briefly, what is involved here. The Act requires the publication of a manual which sets out the functions and structure of the particular body along with the services it provides and how these services may be availed of. This manual must also describe the general classes of records held by the body in such a way as to facilitate the public's right of access under the Act. The manual must also set out the arrangements being put in place for the public to gain access to information and, in most instances, the names and designations of the officials involved. Finally, this manual must also advise the public on their rights of review and appeal against decisions of the body both in relation to FOI and decisions generally.

The second publication requires each public body to detail all its internal rules, procedures guidelines and precedents which are used for the purposes of decisions or recommendations in relation to any benefits, services or schemes operated for the benefit of the public.

It is vital that these publications be made available as quickly as possible. The speedy production of these publications will benefit, not just the public, but also your own staff in their overall preparation for Freedom of Information.

Record Management

In the case of personal information, the right of access will apply irrespective of when the record was created. Otherwise, the right of access will apply only to records created from the date of commencement of the Act. It is clear that good record management will be essential to ensure the proper functioning of the Act. In any event, effective systems of record management are the key to the internal efficiency of public bodies. For this reason I cannot overstate the importance of each health board and hospital thoroughly reviewing its approach to record management. If such reviews have not already begun, then it is vital that such a review be initiated as quickly as possible.

Record management, it is probably fair to say, is a problem within all public service bodies. The advent of FOI requires all such bodies to put a comprehensive and coherent record management system in place. Unless the correct mechanisms are put in place then, irrespective of the fine principles contained in the Act, FOI simply will not function. For this reason, I feel it is imperative that each health board - if it has not done so already - should appoint a senior manager to be responsible for its information management strategy and, in effect. to be the board's FOI manager. I would also recommend that each of the Public Voluntary Hospitals should also give this issue serious consideration at a time when they have an opportunity to prepare properly in the matter.

Training

It will be essential to ensure that senior management and staff are fully trained in the legislation and competent in regard to its application. There are two dimensions to this: the first is that all public bodies must be in a position to comply with the requirements of the FOI Act and the second is that to ensure that the cultural change inherent in FOI can be achieved.

The experience of other countries suggests that where public bodies have not put the necessary effort into staff selection, training and organisation they are unlikely to meet the time limits set for the supply of information. Could I stress here that the specified limit is the maximum - not the norm? The Act specifies "as soon as maybe but not later than.....". A failure to meet the time limit is deemed to be a refusal of a request and the requester's right to internal appeal or external review (as appropriate) becomes operative straight away. Ensuring that the time limits are met will be very important as any delay in the provision of information might well render that information useless to the requester.

Impact of FOI on Specific Service Areas

Let me now give you a few practical examples of where I anticipate FOI will impact on you. We can be sure that requests for access to medical records will form a large proportion of the overall requests made to health boards. Medical records belong to the category of "personal information" and as such will generally have to be made available to the person concerned irrespective of when the record was created. In the past a health board might have sought the advice of its insurers or legal advisers in deciding whether or not to release a medical record. In many cases there may have been an attitude that medical records were sought with a possible litigation in mind. In this context many health boards may have taken the view that access should only be provided following a court order for discovery. Under the Freedom of Information Act, the motivation for an access request is irrelevant and decisions to refuse access to information on the grounds of motivation will not be acceptable to the Information Commissioner . It may well happen that individuals, whose earlier requests for access to a medical record have been refused, will now seek these records under the FOI Act.

There may be a very particular need to improve arrangements for the creation, storage and retrieval of all medical records. From my experience as Ombudsman I am aware that there can frequently enough be problems in hospitals in locating patient charts. In a particular case, in the not too distant past, a hospital administrator told one of my staff that, whereas he was certain that the particular patient's chart existed, and was certainly stored somewhere within his hospital, he felt it was most unlikely that it would ever be found - this was because charts were being stored in all kinds of places within the hospital and there was no proper record of which charts were stored where.

The activities of the boards in relation to child protection and social work services generally may also give rise to quite a number of access requests. These records will generally have to be made available to the person concerned irrespective of when the record was created. I am sure social workers have become quite careful in recent years in the nature of the material recorded on their files. However, boards and hospitals will have to consider how to deal with situations where older files are accessed and where the material may not be to the same standard of professionalism as we expect at present. I am sure that requests for access to such records will present boards with complex and difficult decisions. There may even be a temptation to refuse requests, and avoid confronting a difficult issue, in the hope that the issue will ultimately be resolved following an appeal to the Information Commissioner. I would caution against such temptation. When such a case is brought to the Commissioner, the body will always have to provide detailed reasons for the refusal and it will be open to the Commissioner to investigate (and report on) the FOI practices of any board.

Of particular interest will be the requirement created by the Act to publish all internal guidelines, rules, circulars and so on. If there has been a practice of reliance on unwritten rules such unwritten rules will, under FOI, also have to be made explicit. This perhaps is most likely to arise because of the duty to give reasons for actions which affect individuals.

In this general context it is worth mentioning an interesting provision of the Act which provides that where a person has suffered a loss, and where that loss would have been avoided had the body in question published all the relevant rules, procedures, guidelines and so on, then the loss to the individual is to be made good in so far as possible. This amounts to a very real incentive to public bodies to ensure they meet their full obligations in relation to publishing all relevant rules, procedures and guidelines.

In any event, and returning to those areas of activity likely to give rise to FOI requests, there are many, many other such areas of health sector activity. Other very likely areas for such requests might include: access to records in relation to the inspection of registered nursing homes and registered crèches : and access to records relating to plans for the siting of drug treatment centres or group homes for psychiatric patients or handicapped people.

Conclusions

Before concluding I would like, very briefly, to refer to one of the key principles underlying the entire FOI Act. This is the question of the public interest. As I mentioned earlier, the Long Title to the Act specifies that the purpose of the Act 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 ....".

There are certain categories of record which, under the Act, are exempt from public access. But in the context of the health boards, virtually all of these categories of exempt records carry a public interest override. This means that the exemption can be set aside were the public interest requires this. In one case - access to records relating to the deliberations of public body - the exemption itself only becomes operative where the public interest requires that the record be exempt. So it is clear that the public interest may be invoked either to release information or to withhold information.

Where requesters are given refusals, and where the public interest provision applies, it should be made clear to them that these provisions have been

considered. There is no definition of "public interest" in the Act. There are no ready made criteria to help decide whether the public interest would, on balance, be served by granting rather than refusing the request for information. Decisions in this context will be a matter of judgement based on the facts of each individual case. In many cases the arguments for and against disclosure may well be finely balanced. I think it is possible, without prejudice to any individual decision, to say that such decisions should be taken against the background of the purposes of the Act. I feel there would be general agreement that the Act is designed with the following purposes, at least, in mind :

• to extend, as far as possible, the right of the community to have access to information in the possession of public bodies;
• to make government and public bodies more accountable by making them more open to public scrutiny ;
• to improve the quality of political democracy by giving the opportunity to all citizens to participate fully in the political process including the formulation of policy ;
• to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the criteria which will be applied by public bodies in making those decisions; and
• to enable individuals to have access, except in very limited and exceptional circumstances, to information about them held by public bodies, so that they may know the basis on which decisions which can fundamentally affect their lives are made and may have the opportunity of correcting information which is untrue or misleading.

In conclusion, then, it is clear that the implementation of the Freedom of Information Act within the health sector poses major challenges. I hope that you will bring this message back to your organisations and encourage them to avail of the opportunity now available to ensure that the Act will be successfully implemented.

19 November 1997