Whether the HSE was justified in its decision to refuse access to a record under section 10(1)(a) of the FOI Act on the basis that the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

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

Background

On 15 June 2012, the applicant submitted a FOI request to the HSE at St. Luke's Hospital, Kilkenny for a copy of her file held in the Occupational Health Department. Following the HSE's decision, the applicant submitted a request for an internal review, in which she requested access to a record of a telephone conversation with Ms. Mary Kelly, CNM2, on 22 February 2012. The HSE issued a decision on 7 August 2012 and refused the request on the grounds that the record does not exist. On 14 August 2012, this Office received a request from the applicant for a review of the decision of the HSE.

I note that Mr. Edmund McDaid of this Office wrote to the applicant on 17 October 2012 outlining his preliminary views on the matter and inviting the applicant to comment on his views. In light of the applicant's response, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to details of the submissions of the HSE, to correspondence between the applicant and the HSE and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in deciding that the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Findings

Section 10(1)(a) of the FOI Act provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if-

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

The Commissioner's role in a case such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).

In its decision at internal review, the HSE explained that Ms. Kelly checked her computer diary and her paper diary but no entry was found relating to a telephone conversation with the applicant on 22 February 2012. It further explained that as Ms. Kelly was out of the Office that day it was unlikely that she had spoken with the applicant on the day in question. It provided details of a telephone conversation between the applicant and Ms. Griffith on the day.

In her application to this Office, the applicant alleged that she did, indeed, speak with Ms. Kelly on the day in question and that Ms. Kelly informed her that she would pass a message on to a staff member identified as "CNM3" who, apparently, was not in the office on the day but would return on 23 February. The applicant also subsequently submitted a copy of an itemised telephone bill which shows a number of calls made to the Hospital on 22 February, two of which were of durations in excess of five minutes. One call was made to an identifiable extension at 9.07am, while a second was made at 9.38am. The number displayed for the second call is the Hospital's main switch number. It appears that the first call is the call taken by Ms Griffith.

In response to queries from this office, the HSE confirmed that "CNM3" refers to a Ms. Howard who was working in Waterford Regional Hospital on 23 February. It also provided a copy of Ms. Kelly's diary which clearly indicated that Ms. Kelly was not in the Office on the day the telephone conversation was alleged to have taken place.

Following receipt of Mr McDaid's preliminary views on the matter when he provided the applicant with details of the searches undertaken by the HSE in an effort to locate the record sought, the applicant submitted a character reference, presumably to confirm that her version of events was truthful. I must explain that I have no reason to doubt that the applicant sincerely believes that she spoke with Ms. Kelly on 22 February 2012. However, the evidence presented by the HSE suggests that she is mistaken, particularly the evidence in support of the HSE's contention that Ms. Kelly was not in the Office on the day in question and that the staff member identified as "CNM3" as not in the Hospital on 23 February. Unfortunately, the HSE has not been able to throw any further light on the nature of the second call made at 9.38am on 22 February, given that the number shown is the Hospital's main switch number.

Nevertheless, having regard to the evidence presented by the HSE in support of its contention that the record sought does not exist, I am satisfied that it is reasonable to conclude that the HSE has taken all reasonable steps to locate the record and I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Health Service Executive in this case.

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.

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Stephen Rafferty
Senior Investigator
27 November 2012