The Senior Investigator found that the HSE is justified in its decision under section 10(1)(c) of the FOI Act to refuse access to the records sought on the basis that the retrieval and examination of the number of records concerned would cause a substantial and unreasonable interference with or disruption of the work of the HSE.

Case Summary

Whether the HSE is justified under section 10(1)(c) of the FOI Act in its decision to refuse access to records relating to incremental credit paid to HSE staff on the basis that the retrieval and examination of the number of records concerned would cause a substantial and unreasonable interference with or disruption of the work of the HSE.

Date of Decision: 12.11.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The Applicant wrote to the HSE on 3 February 2009 seeking access to:

''The number of people per year who for any reason were paid incremental credit and or with retrospection e.g.

(a) as a result of any type of LRC hearing

(b) Labour Court

(c) Rights Commissioners

(d) Employment Equality Agency and subsidiaries

(e) Union representation

(f) Recommendations from Programme Managers, Local Health Managers, General Managers and all other relevant managers e.g. Director of HR etc.

(g) To facilitate retirements

My request relates to years 01/01/2001 to 18/01/2009 pertaining to the former South Eastern Health Board/HSE South, since 01/01/2005. To cover the following areas, Wexford, Waterford, Carlow, Kilkenny and South Tipperary for all areas as follows:

1) Acute Hospitals

2) Community Care Areas,

3) District Hospitals,

4) Mental Health/Psychiatric Hospitals/Units,

5) Intellectual Disability Units,

6) Welfare Homes,

7) Elderly/Geriatric Hospitals/Units,

8) Administration areas e.g. Headquarters, Lacken, Kilkenny.

My request covers the following:

a) all administration clerical grades e.g. Grade III to VIII inclusive,

b) co-ordinators e.g. disability etc.,

c) general managers,

d) Local Health Managers,

e) Functional Officers,

f) Regional Managers,

g) Programme Managers,

h) Specialist Grades e.g. Audit

i) All Stores/Supplies/Procurement Grades,

j) Technical Services,

k) Staff recruited from private companies/organisations where the work/tasks was not compatible with the HSE/Health Board norms."

The HSE wrote to the Applicant on 4 March 2009 informing her that it would take a very significant amount of resources to retrieve the information sought and asked her to narrow the scope of the request. The Applicant did not narrow the scope of the request and the HSE refused access to the records on the basis of section 10 (1)(c) of the FOI Act in its decision of 8 April 2009. The Applicant amended her request by deleting the Intellectual Disability Units, the District Hospital and Cluain Welfare Home in Tipperary from the list of areas covered by her request in her internal review request of 4 May 2009. The HSE replied that the amendment does not reduce the size of the request in any significant way and upheld its original decision on 27 May 2009.

The Applicant wrote to this Office on 28 August 2009 requesting a review of the HSE decision.

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.

Scope of Review

I note that following communications between the Applicant and Ms Alison McCulloch, Investigator in this Office, the applicant further amended the scope of her request to:

''The number of staff in the administrative grades from grade 4 up who received incremental credit awarded for acting up service for the years 2001 to 2009 in the Hospitals and Community Care Centres in the HSE South formally South Eastern Health Board."

Therefore, this review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to the records detailed above.

Submissions

.

Findings

Section 10(1)(c)

Section 10(1)(c) provides for the refusal of a request for a record where "granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the public body concerned."

In the HSE's original decision, a senior manager was reported as having said "that it would take a minimum of one person at least one week to retrieve the information requested for that location alone". The HSE said that it could not quantify accurately the maximum time involved due to how much information would have to be searched through to retrieve the information requested. It said that due to the multiple locations and the time period covered by the request, this would have a significant and adverse impact on the day-to-day work of the HSE.

Following agreement with the Applicant to further narrow the request, Ms McCulloch asked the HSE to provide a report from its IT systems indicating the number of staff in the administrative grades from grade 4 up who received incremental credit awarded for acting up service for the years 2001 to 2009 in the Hospitals and Community Care Centres in the HSE South (formally South Eastern Health Board). The HSE replied that the vast majority of the many thousands of HSE staff covered by the FOI request receive incremental credit as staff move to the next point on the incremental salary scale and that no central record exists of staff who received incremental credit awarded for acting up services. It also said "in order to ascertain those who received incremental credit for acting up services over the years specified, a report would have to be printed from our payroll system identifying those who were paid acting allowances and these would then have to be cross referenced with those who also received incremental credit. This list would then require manual checking, i.e. each HR file on each individual on the list would have to be retrieved to ascertain the basis on which they received their incremental credit. "

Effectively, the record which would meet the Applicant's requirements does not actually exist but it would be possible for the public body to compile a record from data available to it in a combination of its IT and manual systems. In such a situation, one would have to consider whether the time and expense involved in compiling the record would interfere substantially with the other work of the body and whether it would be reasonable in that situation to expect the public body to compile the record. This Office requested a report from the HSE of the number of staff who provided acting up services for the period relevant to the FOI request. This report showed that over 400 members of staff in the relevant grades provided acting up services for the HSE South in the relevant period. According to the HSE, this list would have to be cross referenced with those who received incremental credit and each individual HR file would have to be retrieved to ascertain the basis on which the incremental credit was awarded. I have considered this matter and I can see no basis on which to dispute the assertion of the HSE that the retrieval and examination of such records and the staff time necessary to search through a large number of records and establish whether or not incremental credit was awarded on the basis of the staff member having ''acted up'' , would cause substantial and unreasonable interference with its work.

Section 10(2) provides that a public body shall not refuse to grant a request pursuant to the provisions of section 10(1)(c) unless it has assisted or offered to assist the requester to amend the request so that it no longer falls to be refused pursuant to those provisions. I am satisfied that efforts were made both by the HSE and the Applicant at the initial stages to narrow the scope of the request so that it would not encompass so many staff at the various locations. Again, in the course of the review, Ms McCulloch endeavoured, with the Applicant's agreement, to clarify and narrow the scope and the HSE's IT division were involved in extracting staff lists from its systems.

Accordingly, I find that section 10(1)(c) of the FOI Act is applicable to this request and that the HSE is justified in refusing the request on that basis.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE under section 10(1)(c) of the FOI Act.

Right of Appeal

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

12 November 2010