Decision
The appeal is dismissed.
REASONS
Background and Request
- This appeal is brought under section 57 of the Freedom of Information Act 2000 (FOIA) against the Commissioner's Decision Notice dated 12 January 2023 (the DN) with reference IC-191074-R7FO which is a matter of public record.
- The Tribunal conducted a hearing by CVP and considered an Open Bundle of 218 pages, a written final submission from Mr Harrison and heard submissions from Mr Harrison by telephone because he was unable to join by CVP. The Commissioner was not represented and the Tribunal found no injustice in proceeding in the absence of representation.
- Tribunal took into account all the evidence before it and made findings on the balance of probabilities.
- The full details of the background to this appeal, Mr Harrison's requests for information and the Commissioner's decision are set out in the DN.
- On 31 May 2022 Mr Harrison made a FOIA request in the following terms:
"F.O.I request please. Number of Serious Incident De-escalation Request reports in Scarborough A/E and Acute Medicine in 2015-2016-2017-2018-2019-2020. + Serious Incidents level 2 deaths same years please and the same FOI request for YORK."
- Mr Harrison made a similarly worded request on 18 June 2022 in the following terms:
"FOI Request please. Serious incidents level 2 deaths in York NHS Foundation trust Acute Medicine. These years 2015-2016-2017-2018-2019-2020. Also Serious Incidents De-escalation Request Reports in A/E Acute Medicine same years please. And exactly the same F.O.I. request for Scarborough please."
- Mr Harrison made a similarly worded request on 24 July 2022 in the following terms:
"FOI request please NUMBER of Serious incident De-escalation Request Reports in Scarborough A/E and Acute Med in 2015-2016-2017-2018-2019-2020. + Serious Incidents Level 2 deaths same years please. Same FOI requests for York please."
- The three requests are referred to as the Request.
- The public authority responded to Mr Harrison on 23 September 2022 telling him that it was not able to proceed with the enquiries because the Request was unclear (pages 157 to 159).
- Mr Harrison wrote to the Commissioner to complain that he had not had a response to his Request and he stated that he believed the public authority were under-reporting death statistics.
- The Commissioner wrote to the public authority on 28 September 2022 instructing it to provide a response to the Request within 20 working days.
- The public authority responded to Mr Harrison on 3 October 2022 (pages 129 and 130) stating that it did not hold the data in precisely the way Mr Harrison had requested but it provided the data it did hold.
- On 25 October 2022 the public authority responded to Mr Harrison (pages 165 to 169). The email included a Table showing all reported A&E related incidents resulting from the search criteria by year and organisation. The Table included incidents reported to have occurred between 1 January 2015 and 31 December 2022 and reported to the Strategic Executive Information System (StEIS) between 20 May 2015 and 1 October 2022.
- Mr Harrison requested an internal review. The public authority responded on 21 November 2022 and upheld its response of 3 October and confirmed the data provided was correct. The public authority explained in its letter dated 21 November 2022 (page 131) that some serious incidents (Sis) are declared and then de-logged because information later comes to light and confirms that all appropriate care was provided and the death was unpreventable. The public authority only reported deaths as incidents or investigate deaths as SIs if there are concerns about the care provided that may have contributed to the death.
- The Commissioner had some difficulty in understanding the scope of the complaint as Mr Harrison's correspondence lacked coherence. However, the Commissioner understood that Mr Harrison considered that more information was being held within the scope of the Request than had been provided.
- The Commissioner reviewed the public authority's responses and found that the public authority held no further information within the scope of the Request on the balance of probabilities.
- On 10 January 2023 the public authority wrote to the Commissioner (pages 143 and 144) to explain that they do not have a definition for level 2 deaths and they interpreted "de-escalation" as "de-logged" which means SI deaths that are no longer classed as a serious incident. The public authority acknowledged that they should have sought clarification from Mr Harrison.
- On 16 August 2023 the public authority wrote to Mr Harrison (pages 124 to 127) explaining that the records of SI deaths were not provided as the Request was interpreted to only require de-logged information.
- Mr Harrison filed an appeal on 8 February 2023 (pages 6 to 19).
- The Commissioner applied for the appeal to be struck out because the grounds of appeal were unintelligible. The application was refused on 27 July 2023.
- The Case Management Directions dated 27 July 2023 (pages 116 to 118) directed the public authority to file a written submission dealing with the issues set out in paragraph 3. The public authority responded on 16 August 2023 (pages 124 to 127).
The Decision Notice
- The Commissioner stated in the DN that he was satisfied that the public authority holds no further information within the scope of the Request.
- Mr Harrison had accused the public authority of under-reporting deaths. Even if this were true, the fact that a particular incident went unreported would, by definition, suggest that no recorded information about that incident was held. The Commissioner is not responsible for the accuracy of the records a public authority discloses.
- The Commissioner noted that none of the requests were responded to within 20 working days. The public authority explained that a software glitch had caused issues in sending emails to email addresses from the particular domain that Mr Harrison uses. The Commissioner accepted that this may have been the case but it does not absolve the public authority of its statutory responsibilities. The Commissioner recorded a breach of section 10 of FOIA in respect of each request.
Legal Framework
- Section 1 of FOIA confers a general right of access to information held by public authorities. A person is entitled to be informed whether the public authority holds information of the description specified in the Request (section 1(1)(a)) and, if so, to have that information communicated (section 1(1)(b)).
- When determining whether or not information is held the Commissioner and the Tribunal applies the normal civil standard of proof, on the balance of probabilities. The First-tier Tribunal has repeatedly confirmed that this is the relevant test: Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072), Malcolm v Information Commissioner EA/2008/0072, Dudley v Information Commissioner EA/2008/008, and Councillor Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190.
- In reaching its decision the Tribunal took into account all the evidence before it whether or not specifically referred to in this Decision. The Tribunal applied the legislation and case law as set out above. The role of the Tribunal is to consider whether the Commissioner's DN is in accordance with the law. The Tribunal may review any finding of fact on which the DN was based. The Tribunal can review all the evidence before it and makes its own decision.
Grounds of Appeal
- Mr Harrison appears to put forward the following points:
a. He has been provided with a fraction of the information requested and the public authority has not provided all the information it holds.
b. NHS England have informed the public authority to give as little information as possible in fear that the StEIS reporting portal is put against the records and shows that SI severe harm has been underreported.
c. It is a criminal act to send false and misleading information.
d. The public authority needs to be investigated.
e. He seeks access to the StEIS portal.
f. The information sent to him relating to 2021, 2022 and 2023 was not within the scope of his Request and has nothing to do with the Request.
g. There is a difference between the SIs and serious harm incidents that were not de-escalated as reported on National Reporting and Learning System (NRLS) NHS England, NHS Improvement website.
h. With reference to the NRLS website he questions whether the public authority is under-reporting all incidents of just deaths and severe harm incidents.
i. The NRLS website states that feedback is given on every incident that appears to have been incorrectly reported as a death or severe harm incident via the StEIS portal. This is not true.
j. The NRLS website encourages reporting of level 2 incidents and then allows those incidents to be excluded and categorised as 'other.'
k. The Commissioner is responsible for the accuracy of the public authority's records. It is not his responsibility to report to the police any under-reporting of mortality rates. This is the responsibility of the Parliamentary Health Service Commissioners.
l. He asks that the Commissioner instigate a private investigation himself and to inform the police if any NHS employee has committed an offence in providing false and misleading information to NRLS.
Commissioner's Grounds of Opposition
- The Commissioner puts forward the following points:
a. The appeal does not address the DN.
b. The outcome Mr Harrison seeks is outside the scope of the Tribunal's jurisdiction.
c. The grounds of appeal do not disturb the Commissioner's decision and the Commissioner stands by his decision set out in the DN.
The Hearing
- Mr Harrison submitted that he was not interested in those SIs that were declared and then de-logged when information later comes to light and confirms that all appropriate care was provided and the death was unpreventable. He had never been interested in this information.
- Mr Harrison sought a ruling of the Tribunal about the accuracy of the information disclosed because he believes that when compared with other information the information given is fake and misleading.
- It was put to Mr Harrison that all the information he requested, and more, has now been disclosed. Mr Harrison was unable to identify any other information not received that might be held and the only additional information he would like was not mentioned within the Request and not within the scope of the Request.
- Mr Harrison reiterated his grounds of appeal as set out in paragraph 28.
Conclusion
- The Tribunal found that the public authority interpreted Mr Harrison's Request as referring only to de-logged information and information recording serious incidents (severe, moderate and low harm) that had not been de-logged was not, therefore, disclosed. In a letter dated 16 August 2023 the public authority disclosed (pages 124 to 127) the information about the records of serious incidents (severe, moderate and low harm) that had not been de-logged.
- In an email dated 25 October 2022 (pages 63 to 66) the public authority provided all reported A&E related incidents resulting from the search criteria by year and organisation. The information included those incidents reported to have occurred between 1 January 2015 and 31 December 2020 and reported to StEIS between 20 May 2015 and 1 October 2022. The public authority informed Mr Harrison that where the number of individuals was equal to or fewer than five they were unable to disclose the exact number because this related to personal information of third parties.
- Mr Harrison was unable to identify to the Tribunal what other information that he had sought could be held by the public authority. His main argument was that this information when compared to other information showed that the records were inaccurate and deaths were being under-reported. This is not a matter for the Commissioner or the Tribunal.
- The Tribunal found that the public authority wrongly interpreted Mr Harrison's use of the word "de-escalation" to mean "de-logged." Had the public authority made enquiries of Mr Harrison to clarify his Request, misunderstanding and delay could have been avoided. The public authority's interpretation led to a delay in the disclosure of the information sought by Mr Harrison.
- The Tribunal found that the information sought by Mr Harrison has been disclosed and, in fact, additional information has been disclosed. Mr Harrison sought the information from 2015 to 2020 and the information disclosed is from 2015 to 2023.
- The public authority explained that it did not have a definition for level 2 deaths and the information disclosed was of the serious incidents in A&E for the years requested. Mr Harrison refers to 'Acute Medicine" in the Request and the public authority explained that the StEIS which was the data system used to extract serious incident data did not have a category using the term "Acute Medicine."
- The FOIA gives Mr Harrison the right to ask the public authority for the recorded information it holds. This right, however, only covers recorded information which includes information held on computers, in emails and in printed or handwritten documents.
- Mr Harrison sought a ruling of the Tribunal about the accuracy of the information disclosed because he believes that when compared with other information the information given is fake and misleading. It is not the role of the Commissioner or the Tribunal to undertake an investigation on behalf of Mr Harrison to determine what data should be collected or retained by a public authority and what information held is accurate when compared with other information.
- Mr Harrison does not believe that the information disclosed is accurate and maintains that the records are not accurate and the public authority has given false information.
- It is not the role of the Commissioner or the Tribunal to verify the accuracy of the information or to make an investigation into the information provided on behalf of Mr Harrison. The accuracy of the public authority's recorded figures are outside the scope of the Request.
- The Tribunal found on the balance of probabilities that the public authority does not hold any additional information other than that disclosed within the scope of the Request and did not do so at the time of the Request in May 2022 and there is no error of law in the DN.
- The Tribunal found that none of the arguments and grounds presented by Mr Harrison identified any error or law in the DN nor did they identify any incorrect exercise of the Commissioner's discretion.
- Accordingly, the appeal is dismissed.
Signed: Judge J Findlay
Date: 3 March 2025
