Whether the HSE was justified in its decision to refuse to grant a request for access to certain records (or parts of records) on the basis that sections 10, 21 and 28 of the FOI Act applied.

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

Background

By letter dated 1 September 2009 the applicant made a request to the HSE under the FOI Act for information relating to two named persons (YY and ZZ) and their positions within, or advising, the HSE. The HSE separated the request into different numbered parts, numbering them 1 to 17, and issued its decision in three letters. By letter dated 1 October 2009, it provided the applicant with certain information in response to, and made a decision in respect of, parts 1 to 9 and parts 14 to 16 of the request. It granted access to a number of records and refused access to the following records pursuant to section 28(1) of the FOI Act - records 7 (refused in part), 8, 11 (refused in part), 12 (refused in part), 13, 14, 15 and 16. Access to record 7 was also refused pursuant to section 21(1)(b) of the Act. Access was refused to any further records in response to parts 6 and 7 of the request pursuant to section 10(1)(a) of the Act. On 5 October 2009 the HSE refused part 17 of the request pursuant to section 10(1)(a) of the FOI Act and on 20 October 2009 it provided the applicant with information in response to parts 10 to 13 of her request in relation to one of the persons named in the request.

By letter dated 30 October 2009 the applicant sought an internal review of the decision of the HSE. By letter dated 18 December 2009 the HSE informed the applicant of its internal review decision affirming its decision of 1 October 2009 (on parts 1-9 and 14-16 of the request). On 10 February 2010 it made an internal review decision upholding its decision in respect of part 17 of the request. By letter dated 16 November 2009 the HSE provided further information in response to parts 10-13 of the request in relation to the same individual named in its decision of 20 October 2009.

The applicant applied to this Office for a review of the HSE's decision on 31 March 2010. I note that Ms Marie O'Brien, Investigator, wrote to the applicant on 1 August 2012 outlining her preliminary views in relation to the matter. Having regard to the applicant's response of 27 August 2012, I have decided to conclude this review by way of formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the HSE and to correspondence between the HSE and this Office. I have also had regard to the provisions of the FOI Act and to the contents of the records at issue.

Scope of Review

I understand that during the course of this review, the applicant may have been granted access to a refreshed copy of record 11 (to include a previously redacted sentence) and to record 12 in full. However, insofar as there may remain a doubt and for the sake of clarity and certainty, I am including these parts of those records within the scope of this review. Accordingly, this review is concerned with the question of whether the HSE was justified in deciding to refuse access to records 7 (in part), 8, 11 (in part), 12 (in part), 13, 14, 15 and 16, and whether it was justified in effectively refusing access to any further records of relevance to the applicant's FOI request on the ground that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken (section 10(1)(a) of the FOI Act refers).

Analysis and Findings

Section 28
Section 28(1) of the FOI Act provides that, subject to the provisions of the section, a public body shall refuse to grant a request if access would involve the disclosure of personal information.
Section 2 of the Act defines personal information as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or members of the family or friends of the individual, or is held by a public body on the understanding that it would be treated by it as confidential. Section 2 goes on to list 12 categories of information which are included in the definition of personal information, including (iii) information relating to the employment or employment history of the individual and (iv) information relating to the individual in a record falling within section 6(6)(a).

A record falling within section 6(6)(a) is a record that is a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member. However, section 2 also provides that the definition of personal information does not include-

"(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid, "

In a submission to this Office the HSE stated that the information in record 7 from mid line 4 to 15 (inclusive) relates to salary and pension arrangements for one of the two individuals and that it constituted a personnel record as defined in section 6(6)(a) as provided for in section 2(b)(iv). Access was denied under section 28(1). However, the exclusion at (I) must be considered. I have considered the information contained in this part of the first paragraph and I am satisfied that the information falls within the exclusion at (I) in the definition of personal information insofar as it it relates to the individual concerned. Thus, I find that the information is not personal information and that section 28(1) does not apply to the information at issue. I have also considered the information contained in the remainder of record 7, - lines 16 to 21 (i.e. the second paragraph) - and I am satisfied that the information relates to the individual personally, does not fall within exclusion (I) and constitutes personal information about the individual concerned.

I have also considered record 8 which was described in the schedule of records as "re retirement". Having considered the contents of this record, I am satisfied that the information contained in the record constitutes personal information about the individual concerned.

Access has been granted to record 11 in part. I have considered the remainder of this record, i.e. the fourth and fifth paragraphs (third and fourth bullet points) and the sixth paragraph. In my view, the information contained in these paragraphs falls within the exclusion to personal information at (I) of the definition of personal information. I find, therefore, that the information contained in the remainder of record 11 is not personal information and section 28(1) does not apply to the information concerned.

I have also considered the information contained in the remainder of record 12 (i.e. from mid line 4 to the end of the record) which has not been released. I am satisfied that the information does not constitute personal information about the individual referred to in the letter. Thus, section 28(1) does not apply to the remainder of this record.

Records 13 to 16 inclusive have been described by the HSE in the schedule of records as "Action Plan/ Key Result Areas" of the two named individuals concerned. These records were identified by the HSE as relevant to part 14 of the applicant's request - namely "For each of the years of employment with the HSE did their remuneration include a bonus element? If so, what were the performance criteria applied and were they achieved?". The HSE stated that these records (13-16) are part of the HSE's Performance Planning and Review process which is used to translate strategic plans into action and relates to the competence or ability of the individual in their capacity as a member of staff in the performance of their function. It stated that the records could be described as "personnel records" and fall under the exemption provided by section 28(1). The HSE also stated that this type of information is held on the understanding that it would be treated as confidential. I am satisfied that as the records are part of the Performance Planning and Review process, they may be considered as relating to "competence or ability of the individual in his ... capacity as a member of the staff of a public body ... or an evaluation of the performance of his ... functions...". Having considered the records, I am satisfied that they fall within section 6(6)(a) of the FOI Act and, therefore, the information contained in the records constitutes personal information. I am also satisfied that they do not fall within the exclusion to personal information at (I) referred to above. In my view, this exclusion does not apply to a record of this nature which relates to the competence or ability of the individual or the evaluation of the performance of his functions.

Thus, I find that the information contained in second paragraph of record 7, record 8 (in its entirety), and records 13, 14, 15 and 16 (in their entirety) is personal information about the third parties concerned and that section 28(1) applies.

Section 28(2)
Section 28(2) provides that section 28(1) does not apply in a number of circumstances. I have considered the information which I have found to be personal information and I am satisfied that section 28(2) does not apply as the information concerned does not relate to the requester, any individual to whom the information relates did not provide consent to the release of the records, the information is not of a kind that is available to the general public nor does it belong to a class of information that might be made publicly available, the individual or individuals to whom the information relates were not informed prior to the information being given that it might be made available to the general public, and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where, on balance - (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual aforesaid. In my view the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 28(5)(b) does not apply in this case. In a submission to this Office the applicant stated that she would like the public interest test revisited in relation to the non-disclosure of records. The applicant has made certain arguments concerning the appointment of the two individuals. She argued that there is a strong public interest argument for full disclosure regarding public servants who were responsible for the decision-making processes of the HSE.

In its original decision the HSE decided that, on balance, the public interest arguments against disclosure to protect the right to privacy of the third party outweigh the public interest arguments in favour of disclosure. In a submission to this Office it referred to the following public interest arguments in favour of release in the context of record 7: the public interest in individuals being able to exercise their rights under the FOI Act in relation to records held by the HSE; the public interest in members of the public knowing how public monies are spent; and the public interest in members of the public knowing how a public body performs its functions. It also referred to the following public interest arguments against release: the public interest in ensuring that FOI is not used to release confidential information relating to an employee; and the public interest in ensuring that personnel related matters between the HSE and employee are not made known to the public.

I consider that there is a public interest in ensuring openness, transparency and accountability in the public service and in ensuring openness, transparency and accountability in the expenditure of public money. I also consider that there is a public interest in openness and transparency in how a public body performs its functions. Having considered the contents of the records at issue, I do not consider that release of the personal information in the records referred to above would enhance, to any significant extent, the public interest in ensuring such openness, transparency or accountability. Also, in my view, the public interest in favour of the release of the records at issue in this case is diminished somewhat by the release of other records in this case, including the job specification for one post and description of the role and functions of another post. I am also of the view that publication by the HSE of its National Service Plans for the relevant years also serves to inform the public about its plans for the services it provides and helps to provide openness and accountability with regard to how it performs its functions.

As stated in the preliminary views letter to the applicant, the FOI Act recognises a strong public interest in protecting privacy rights. The language of section 28 and of the Long Title to the Act recognises this public interest. The right to privacy also has a constitutional dimension. In this case, I am satisfied that the public interest in granting the applicant's request does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. Thus, I am satisfied that section 28(5)(a) does not apply in relation to the personal information in the records referred to above. For these reasons, I find that the HSE's decision to refuse access to the information contained in second paragraph of record 7, record 8 (in its entirety), and records 13, 14, 15 and 16 (in their entirety) pursuant to section 28(1) of the FOI Act was justified.

However, I find that the information contained in the first paragraph of record 7 (i.e. from mid line 4 to line 15, inclusive) and the remaining parts of records 11 and 12 is not personal information and that section 28(1) does not apply.

Section 21(1)(b)
The HSE also refused access to the remaining part of record 7 pursuant to section 21(1)(b). As I have found that the HSE's decision to refuse access to the second paragraph of record 7 is justified, I do not consider it necessary to consider the application of section 21(1)(b) to that paragraph. However, I have found that the information contained in the first paragraph of record 7 (i.e. from mid line 4 to line 15, inclusive) is not personal information and section 28(1) does not apply to that part of record 7. I will therefore consider the application of section 21(1)(b) to the first paragraph.

Section 21(1)(b) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff). Section 21(1)(b) is subject to a public interest test under section 21(2). In arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

In its decision of 1 October 2009 and in a submission to this Office the HSE stated that personal information under section 2(b)(iii) and its release in this instance could, if it was to be repeated, have an adverse effect on the industrial relations function concerning any individual or all staff of a public body. While the HSE made this assertion, it has not, in my view identified the particular potential harm to its industrial relations function (or any of its functions relating to management) or how such a harm could reasonably be expected to result. Neither has it, in my view, shown that any such harm could reasonably be expected to have "a significant, adverse effect" on its industrial relations function (or any of its functions relating to management). I am also conscious of the content of the information contained in the first paragraph of record 7, which I have found to fall within the exclusion to the definition of personal information, and of the content of the information to which the applicant was granted access by the HSE in this case and the nature of the information which is routinely made available by the HSE. I find that the HSE has not shown that it has a reasonable expectation that granting access to the remaining part of the first paragraph of record 7 (i.e. from mid line 4 to line 15 inclusive) could result in a significant, adverse effect on the performance of its industrial relations function (or its other functions relating to management) and, thus, I find that section 21(1)(b) does not apply to the information concerned.

Section 10(1)(a)
Section 10(1)(a) provides that access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Details of the searches undertaken by the HSE have been provided to the applicant by the HSE and this Office and details of further searches are provided below.

I would also add that the Information Commissioner, in implementing the terms of the FOI Act, is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which an applicant considers ought to exist. Further, matters relating to the general administration of a public body and how it carries out its functions do not fall within the remit of the Information Commissioner.

Part 6
In response to the question designated part 6 by the HSE (which related to the scope of authority, terms and conditions during the tenure of each position) the HSE provided the applicant with records 9 and 10. The HSE also stated that it was unable to find any other records related to this question and therefore that access was denied under section 10(1)(a) of the Act. In her application for internal review and in a submission to this Office the applicant said that it seemed to her that records had been omitted regarding the change in position post-secondment of one individual. She also referred to other matters which in her view raised certain issues and she argued that she had not been provided with any records which considered these issues and which she contended are of significant public interest. In the decision on internal review, the HSE stated that a search of records pertaining to this event within the Human Resources Department, the HSE CEO office and the National Hospitals Office had indicated no further records were available (other than those listed on the schedule attached to the decision).

Part 7
In response to the question designated part 7 by the HSE, which related to any change in the scope of authority, terms or conditions during the tenure of each position, the HSE provided certain information to the applicant and referred to record 7 in relation to one individual. In relation to the other individual, it stated that it had been unable to find any records related to this question and therefore access was denied under section 10(1)(a) of the Act. It also provided the applicant with details of the records examined in this regard. (I would also add that, according to the schedule of records provided, record 8 (referred to above) related to part 7 of the request (as well as parts 4 and 5 of the request).

Parts 10 to 13
In response to the questions designated 10 to 13 by the HSE (which related to decision-making committees and advisory committees to which the individuals had been appointed), the HSE provided the applicant with information related to one individual in its letter of 16 November 2009. In a letter to the applicant dated 4 August 2011 concerning records containing the information sought at parts 10 to 13 relating to the other individual, the HSE stated that it could not locate the records and that it must therefore refuse the request under section 10(1)(a) of the Act.

In the letter of 4 August 2011, the HSE provided the applicant with details of the search steps undertaken. In addition, in a submission to this Office the HSE stated that no personal records of the individual concerned remained in the National Hospitals Office nor were any other sources of information indicated through discussion with the person who had worked as [the individual's ] Personal Assistant at that time. The decision maker said that, as an initial step in the search, she undertook a search of the files held by the National Hospitals Office using the following steps:

a) Checked the file list to see if there were files on specific groups/committees - nothing found

b) Checked specific hospital file to see if a group/committee section had been set up in any file - nothing found

c) Ascertained that a number of NHO files had been archived and stored off site.

d) Checked the list of archived files to see if any group/committee file had been archived - nothing found

e) Spoke to the individual [staff member] who had archived the files and asked if documentation on membership of any group/committee had formed part of the archived files. [The staff member] assured the decision maker that it did not. Being new to the department at the time [the staff member] had taken the time to read each file in order to bring herself up to speed on the department prior to archiving. The archiving exercise took a total of six weeks and [the staff member] assured the decision maker no such file or section of file existed amongst those archived.

f) Sought information from the former Personal Assistant of the individual in relation to whom the records were sought as to any other archived or possibly current files available which would indicate membership of groups / committees - the decision maker was assured there were no other files.

The decision maker stated that, based on the outcome of searches of the records of the National Hospitals Office, she deemed that such records did not exist within the remit of the HSE. In a subsequent letter to this Office the decision maker confirmed that no records as described in the FOI request existed in the National Hospitals Office relating to a named person who retired in [year] after a full career in the EHB/ [named] Hospital/HSE, including the post of [specific post]. She stated that the named person moved to a role in [specific office] and, as per normal practice, she assumed any personal records would have moved with [the individual]. She stated that there is no list of files indicating exactly what may have moved.

Part 15
In response to the question designated 15 (which related to continuing education), the decision maker stated that she was not aware of any continuing education funded by the HSE for either of the two individuals since appointment to the HSE. She stated that the individuals concerned may have undertaken further education or training in their own time and at their own expense but this would not be the business of the HSE. The applicant argued in her application for internal review that she did not accept that the apparent failure of the individuals concerned to have engaged in continuing education would not be the business of the HSE. The internal reviewer confirmed on appeal that no further records had been identified.

Part 17
In its decision of 5 October 2009 in response to the question designated part 17 (relating to inquiries/ sanctions arising from a meeting of the Oireachtas Joint Committee on Health and Children of 22 November), the HSE stated that it could not locate any relevant records. The decision maker listed the search steps undertaken to locate the records and refused the request under section 10(1)(a) of the FOI Act.

I would mention that there appears to have been some confusion regarding the date of the Joint Oireachtas Committee meeting in correspondence from this Office after the matter came to this Office on review. While reference was made to the meeting having taken place in November 2008 and to the attendance of five members of HSE staff, it appears that the meeting took place in November 2007. I note that the applicant referred to November 2007 in her letter seeking internal review and, in his decision, the internal reviewer stated that he could find no records to which the applicant referred. He relied on section 10(1)(a) of the FOI Act for refusal to accede to the request. In a submission to this Office, the HSE stated that no records of an enquiry into a lack of information to the Minister could be traced and an FOI decision to that end issued on 5 October 2009. I am satisfied that in its correspondence and submissions, the HSE was aware of the November 2007 Joint Oireachtas Committee meeting referred to by the applicant and its searches and enquiries related to that meeting.

A summary or outline of the steps taken by the decision maker to locate the records to address part 17 was provided to the applicant by Ms O'Brien of this Office in a letter dated 13 January 2012. In its submission to this Office the original decision maker also stated that, on the basis that any enquiry/investigation might have taken place outside of the NHO office, she contacted the FOI decision maker in the CEO's Office and a search of the files in the CEO's office was instituted to locate any file or portion of file pertaining to the issue. She said that a transcript of the Oireachtas meeting was obtained and, based on the information therein, a search of the files was instituted. She stated that the CEO's office use a Softco system to store all files electronically and also a hard copy file. She stated that both were searched for any documentation / information pertaining to an investigation/enquiry on the issue and nothing was found. She stated that any investigation / enquiry of the nature of the one described would generally be instituted at the request of the CEO. She stated that no records of such an investigation / enquiry or request for an investigation were located within the National Hospitals Office and no records of such an investigation or request for an investigation/enquiry were located in the office of the CEO. She stated that based on the outcome of searches of the records of both the National Hospitals Office and the CEO's office it was deemed that such records did not exist.

Application of section 10(1)(a)
I note the searches carried out by the HSE as detailed in correspondence to the applicant and above. It appears that the applicant is of the view that further records ought to exist. As I explained above, the FOI Act does not provide for a right of access to records which ought to exist. While I note the applicant's queries and concerns regarding records which were not provided, the position remains that the powers of the Commissioner relate to extant records only. Tangible evidence has not been provided to suggest that relevant records exist. Further, matters relating to the general administration of a public body or how it carries out its functions do not fall within the remit of the Information Commissioner. The position appears to be that despite extensive searches the HSE has been unable to locate records containing the information sought. The issue which I must address is whether the public body was justified in concluding that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Having reviewed the steps taken by the HSE as detailed in correspondence to the applicant, both from the HSE and this Office, and the steps set out above, I am satisfied that the HSE was justified in concluding that all reasonable steps have been taken to locate the records and that records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Accordingly, I find that section 10(1)(a) of the FOI Act applies and that the HSE was justified in refusing access to any further relevant records on this basis.

Decision

Having carried out a review under section 34(2) of the FOI Act, I find that the HSE's decision to refuse access to the information contained in second paragraph of record 7, record 8 (in its entirety), and records 13, 14, 15 and 16 (in their entirety) pursuant to section 28 of the FOI Act was justified. I affirm its refusal of these records under sections 28(1) of the FOI Act.

I find that the information contained in the first paragraph of record 7 (i.e. from mid line 4 to line 15, inclusive), the fourth and fifth paragraphs (third and fourth bullet points) and sixth paragraph of record 11 and the remaining part of record 12 does not disclose personal information and is not exempt under section 28(1) of the FOI Act. I also find that section 21(1)(b) does not apply to the first paragraph of record 7 (from mid line 4 to line 15 inclusive). I hereby vary the decision of the HSE and direct that access be granted to the information contained in the first paragraph of record 7 (i.e. from mid line 4 to line 15, inclusive), and the remaining parts of records 11 and 12.

I find that the HSE was justified in refusing access to any further relevant records on the basis that section 10(1)(a) of the Act applies and I affirm the HSE's reliance on section 10(1)(a) in refusing to grant the request to any further relevant records.

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.

Stephen Rafferty
Senior Investigator
26 August 2013