Need to broaden scope of FOI legislation to private healthcare
That is according to William Binchy, former Regius Professor of Laws at Trinity College Dublin, who addressed the second national FOI conference in Kilkenny yesterday.
Prof Binchy said some producers of medical devices “have a very sharp or stern policy” regarding retention and disposing of records “such that they will dispose of records very shortly after they’ve been made, certainly on the electronic side”.
The argument used to justify this is “tidy management of your electronic intray” but, Prof Binchy said, that argument “could be challenged or at least criticised” on the basis that producers of medical products who face the possibility of being sued at some stage by an injured consumer are effectively “wiping the slate clean”.
Prof Binchy said that, just as citizens have access to the workings of the government under FOI legislation, there may be a case for consumers of healthcare to also be given broader access “to something looking like FOI entitlement”.
He said producers of products can “introduce cynically short periods for retention of records... anticipating not necessarily a particular claim but rather the prospect of claims as an almost inevitable aspect of the production process”.
“Is that fair to those victims whose access to information is destroyed?” he asked. “Even if an order of discovery is granted in those circumstances, they won’t be able to have access to the information because it’s been destroyed.”
Prof Binchy also expressed concerns about public bodies’ use of an “oral system” instead of written records for fear something would “come back to haunt them” under FOI, saying this has repercussions for the State’s “historical memory”.
His concerns were echoed by Catherine Pierse, head of legal at the Policing Authority. Ms Pierse asked if reverting to an oral system is “an inevitable outcome of FOI” — if it means people are “reluctant to write dissenting opinions down”.
She asked Evelyn O’Connor, principal officer in the Government Reform Unit of the Department of Public Expenditure and Reform if this is an “unintended consequence of FOI”. Ms O’Connor, who has played a lead role in reforming FOI legislation, said similar concerns have been aired previously but there is no evidence to support this fear.
Management consultant Pat McLoughlin, who chaired the conference hosted by AllOne Corporate Solutions, said what happened on the night of the bank guarantee highlights the need for keeping records — records were not kept on and conflicting accounts were subsequently given by different banks.
On the other hand, those who made protected disclosures during the banking inquiry had kept records and were able to protect themselves as a result, Mr McLoughlin said.
Conference organiser and AllOne director Sinead Byrne said she previously worked for the health board and, back in the day when recording minutes of health board meetings, she “learned very quickly how certain people wanted certain things recorded”.
