Ms X and Beaumont Hospital

• Judge: Elizabeth Dolan Senior Investigato
• Judgment Date: 23 July 2015
• Case Outcome: The Senior Investigator affirmed the Hospital?s decision.
• Court: Information Commission
• Record Number: 150059
• Respondent: Beaumont Hospital

Whether the Hospital was justified in its decision to refuse access to records concerning the use of certain medical devices in the Hospital under section 10(1)(a) of the FOI Act on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 August 2014, the applicant made an FOI request to the HSE seeking copies of agreements and clinical trial indemnity forms entered into between Beaumont Hospital and the manufacturers of four types of medical device used in the treatment of stroke. The devices in question were the (1) Stryker Merci, (2) Stryker Trevo, (3) Coviden Solitare and (4) Medtronic Solitaire. The applicant's fifth request was for copies of agreements and clinical trial indemnity forms entered into between Beaumont Hospital and the University of Calgary in respect of the Escape Trial into the treatment of stroke at the Hospital. The applicant's request was forwarded by the HSE to Beaumont Hospital.

On 2 December 2014 the Hospital decided to refuse access to all of the records requested on the basis that they contained commercially sensitive information. The applicant sought an internal review of the Hospital's original decision and on 9 January 2015, the Hospital issued an internal review decision upholding its original decision. On 25 February 2015 the applicant applied to this Office for a review of the decision of the Hospital. On 20 March 2015, the Hospital wrote to this Office stating that no documents existed in relation to the applicant's request 1 to 4 and the record requested at 5 was commercially sensitive. The Hospital however subsequently agreed to release record 5. Both the applicant and the Hospital made a number of submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the Hospital, to correspondence between the Hospital and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue. Finally, I have had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with whether the Hospital was justified in refusing access to the remaining records sought by the applicant under section 10(1)(a) of the Act, on the basis that the Hospital claimed that the records are not held by it or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Hospital initially argued that record 5 was exempt under section 27(1)(b) of the FOI Act which...