Case 040140. Statutory basis for the conduct of an internal review - jurisdiction at internal review stage - categories identified in section 14(1) - jurisdiction at internal review stage - whether internal review covers all such categories

Case Summary

Facts

Ms. X sought access to records held by the Health Service Executive North Eastern Area (HSE), formerly the North Eastern Health Board. The HSE's original decision was to grant access by way of copy and to apply both 'search and retrieval' and copying charges. Ms. X applied for an internal review stating that she wished to appeal the charges. On internal review, the HSE reviewed the decision in its entirety, annulled its initial decision to grant access by way of copy and decided to offer access by viewing only. The HSE appeared to be of the view that the internal reviewer had the jurisdiction to re-visit all aspects of the original decision and not just the aspect on which the applicant has sought the internal review. In the course of the Information Commissioner's review, Ms. X agreed to narrow the scope of her application to exclude the issue of charges and the review then dealt solely with whether the HSE was entitled to change the manner of access at internal review stage.

Decision

The Commissioner considered whether an internal reviewer has the jurisdiction to re-visit all aspects of the original decision or solely the aspect on which the applicant has sought the internal review. The Commissioner took the view that it was not tenable, having specified in section 14(1) separate categories of decision on which a review might be sought, and where the review application clearly identifies one of these categories, that the Act envisages the internal reviewer being free to conduct the review by reference to another of the categories identified in section 14(1).

The Commissioner considered that should an internal reviewer have a full jurisdiction to re-visit all of the issues of a case, a possible scenario would be that the internal reviewer would, amongst other things, have the jurisdiction to overthrow an existing decision to grant access to records. The Commissioner considered that it is not open to an internal reviewer, operating under section 14, to remove a right of access to records where that right has already been conferred by the initial decision maker. (In this case it was the manner of access which was changed to the applicant's disadvantage, without her having sought a review on that matter.) The Commissioner took the view that the logic of section 14 is that a person seeking internal review should not be disadvantaged, by virtue of having sought the review, in relation to a matter outside the scope of the review as made. She was satisfied that the HSE's internal reviewer should, in this case, have confined his review to the question of charges and that he did not have the authority to review an aspect of the decision on which the applicant had not sought a review.

The Commissioner decided that to the extent that the internal review decision purported to change the manner of access to the records in question, the decision was not justified and should not be allowed to stand. As a consequence, the original decision of the HSE to grant access by way of copy stands.

Date of Decision: 02.12.2005

Our Reference: 040140

02.12.2005

Ms X

Dear Ms X

I refer to your application for a review under the Freedom of Information (FOI) Act of the decision of the Health Service Executive, North Eastern Area (HSE), formerly the North Eastern Health Board, on your FOI request for videotapes of your children A and B. I apologise for the delay which has arisen in dealing with your case.

Background

On 6 February 2003 you requested, amongst other records, access to videotapes of your children, A and B, [details of the service attended have been deleted]. In a letter dated 28 April 2003, the HSE offered you access by viewing the tapes while also noting that "you have expressed a desire for a copy of the video"; it informed you that the "cost of a copy would be incurred by you" and that it was "currently exploring the possibility and cost of copying this video footage". It appears that this letter was not intended to constitute a decision under the FOI Act. That decision was given subsequently in the HSE's letter of 16 July 2003. While this letter is somewhat confusing, it does appear that the decision being conveyed is that you would be given a copy tape on to which would be transferred the recordings involving your children. The HSE further informed you that a "search and retrieval" charge of € 81.28 would have to be paid by you and that a further copying charge of € 20.32 would apply. The HSE sought payment of a deposit of € 30 in the event that you wished to proceed with the request for a copy of the video recordings.

On 11 August 2003 you applied to my Office for a review of the HSE's decision. On 5 September 2003 you were informed by my Office that I could not accept an application for review where you had not exercised your right of internal review with the public body. On 8 September 2003 you applied to the HSE for an internal review, stating that you wished to "appeal the charges for the video footage requested under the Freedom of Information Act". The HSE gave its internal review decision on 25 September 2003. In that decision the HSE purported to annul its initial decision "which was made on the premise of granting access by arranging copy of the video concerned with charges"; instead, the internal review decision was "to grant you access to the records sought by way of a reasonable opportunity to view the record concerned". It appears that the internal reviewer affirmed the decision to impose a "search and retrieval" charge based on four hours work.

On 7 March 2004 you applied to my Office for a review of the HSE's internal review decision and my Office accepted your application.In reviewing this case I have had regard to the following matters:

• the HSE's decisions on the matter;
• the HSE's communications with this Office in the course of this review including its written submissions dated 12 November 2004, 21 March 2005 and 25 April 2005;
• your written communications with this Office including your application and submissions dated 7 March 2004 and 6 October 2004;
• phone conversations between the HSE and this Office in the course of this review;
• phone conversations between yourself and this Office in the course of this review;
• the provisions of the FOI Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003.

Scope of Review

In the course of the review you clarified that the issue you wish my Office to consider is the HSE's internal review decision to change the manner of access to the record sought; you clarified that you are not seeking a review on the matter of the validity of the fees being charged. Accordingly, the issue in this review is whether the HSE's internal review decision is correct and in accordance with the provisions of the FOI Act.

Findings

As I understand it, it is your case that the HSE does not have the right to resile from the substantive decision which it gave on 16 July 2003 which was to grant you access by way of a copy of the video. Your contention is that, having sought an internal review solely on the issue of whether you were obliged to pay a charge for the copy video, it was not open to the HSE's internal reviewer to revisit the substantive issue of the manner of granting access to the record sought. The HSE, on the other hand, appears to contend that the internal reviewer approaches each case with a full jurisdiction to re-visit all of the issues, including the issue of the manner of access to the record in question. It is clear, therefore, that the central issue in this case is the nature of the internal review required to be conducted by the HSE following your application for such a review on 8 September 2003.

Section 14 - Internal Review

The statutory basis for the conduct of an internal review is provided for at section 14 of the FOI Act. Section 14(1) identifies seven categories of decision to which the section applies, as follows:

"(a) a decision to refuse to grant a request under section 7, whether wholly or in part, (other than a request to which section 29 applies) (''a request") in relation to the record concerned,

(b) a decision under section 11 to defer the offering of access to a record falling within paragraph (a) of subsection (1) of that section,

(c) a decision under section 12 to grant a request by giving access to the record concerned in a form other than that specified in the request,

(d) a decision under section 13 to grant a request under section 7 by offering the requester concerned access to a copy of part only of the record concerned,

(e) a decision under section 17 to refuse to amend a record,

(f) a decision under section 18 in relation to the contents of a statement furnished under subsection (1) of that section or to refuse an application under that subsection, or

(g) a decision to charge a fee or deposit, or a fee or deposit of a particular amount, under section 47."

It is significant that the seven categories identified in section 14(1) relate to decisions made under seven separate sections of the FOI Act. In practice, a request under the FOI Act may well require a number of separate decisions at the initial stage. For example, where the request is for access to records (as in your case) it will be necessary to give a decision under section 7; but it may also be necessary to give a decision under section 12 (providing for a manner of access other than that sought), under section 13 (where a part only of the record is made available) or under section 47 (where a fee is charged). In the case of your FOI request of 6 February 2003, the initial decision maker made decisions under section 7 (granting access) and under section 47 (charging a fee and seeking a deposit); she may also have made a decision under section 13 in that the record to be provided would consist of a part only of the overall record (the material relating to other children was to be deleted from the copy to which you were being granted access).

In choosing to seek an internal review, you specified that you wished to "appeal the charges for the video footage requested under the Freedom of Information Act". While it would be unreasonable to expect you to have done so explicitly, it is clear to me that your internal review application was in accordance with section 14(1)(g) of the FOI Act. This being the case, I am satisfied that the only matter before the internal reviewer was that relating to the charging of a fee and/or the requirement that you pay a deposit. It is not tenable, having specified these separate categories of decision on which a review might be sought, and where your review application clearly identifies one of these categories, that the Act envisages the internal reviewer being free to conduct the review by reference to another of the categories identified in section 14(1). [Section 14(1)(c) is the relevant provision where the review concerns the manner of granting access to a record.]

In its submission of 25 April 2005, the HSE commented that "the Internal Review function was a total new and not a perfunctory examination of the records, the subject mater of the request." This appears to be an argument that the internal reviewer has the jurisdiction to re-visit all aspects of the original decision - and not just that aspect on which the requester has sought the internal review. However, other than making this comment, the HSE has not presented any substantive argument on this matter. The logic of the position which the HSE appears to support is that the internal reviewer has, amongst other things, the jurisdiction to overturn an existing decision to grant access to records. However, such a decision is not "a decision to which this section applies". In so far as decisions under section 7 are concerned, only a decision "to refuse to grant a request under section 7, whether wholly or in part ..." is capable of being the subject of an internal review under section 14. In short, it is my view that it is not open to an internal reviewer, operating under section 14, to remove a right of access to records where that right has already been conferred by the initial decision maker.

In your case, while the right of access was not removed by the internal reviewer, the manner of access was changed to your disadvantage and without your having sought a review on that matter. The logic of section 14, in my view, is that a person seeking internal review should not be disadvantaged, by virtue of having sought the review, in relation to a matter outside the scope of the review as made. I am satisfied that the HSE's internal reviewer should, in this case, have confined his review to the question of charges and that he did not have the authority to review an aspect of the decision on which you had not sought a review. I find, therefore, that to the extent that the internal review decision purported to change the manner of access to the records in question, the decision is not justified and should not be allowed to stand.

In the course of the review the HSE made quite detailed submissions regarding:

• technical difficulties in transferring your children's interviews from two master tapes on to a copy tape containing only your children's interviews;
• possible privacy and data protection issues arising from the process of transferring your children's interviews from two master tapes which contain material relating to other children;
• difficulties for the HSE and its professional staff which might ensue from the provision to you of a copy of the children's interviews.

While recognising that the grant of your request by way of providing a video copy of the children's interviews may create some difficulties for the HSE, I am not satisfied that these difficulties are insurmountable. Nor am I satisfied that these difficulties are of a kind which warrant the grant of access by way of viewing, rather than by way of the provision of a copy of, the video. In any event, these are considerations which should, more properly, have been raised at the stage of the initial decision; they do not constitute considerations to which the internal reviewer was entitled to have regard.

The HSE has argued that the grant of your request, by way of editing two master tapes and compiling one new copy tape, constitutes the creation of a new record and that the FOI Act does not require the creation of a new record. I do not accept this argument. I take the view that section 13(1) of the FOI Act applies in the case of a record comprising a video or other such recording (including audio) in the same manner as it does to a record which is a paper record.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended, I hereby annul the internal review decision of the Health Service Executive, North Eastern Area given on 23 September 2003. In consequence of my decision, the original decision of the Health Service Executive, North Eastern Area, as given on 16 July 2003, stands. This means that the charges and the deposit proposed by the HSE in the decision of 16 July 2003 will apply to the grant of your request.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner