Whether the HSE was justified in its decision to refuse access to records relating to an assessment for palliative care on the basis that no records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 19 February 2014 the applicant submitted a request to the HSE for certain records relating to an assessment undertaken of his wife's suitability for palliative care. He explained that his wife was a patient in Beaumont Hospital, awaiting discharge to full-time residential care, and that she had been assessed by the HSE for suitability for transfer to HSE-funded palliative care in Our Lady's Hospice (the Hospice). Specifically, he sought access to the following records:

• the criteria applied by the HSE generally in determining suitability for palliative care
• the criteria applied by the HSE in determining his wife's suitability for palliative care
• the medical report concerning his wife that was sought and received by the HSE as part of its assessment,
• a copy of the assessment specifically conducted by the HSE to determine his wife's suitability for such care, and
• a copy of the HSE's determination which sets out the criteria which the HSE concluded his wife did not meet for palliative care.

The HSE wrote to the applicant on 27 February 2014 stating that his request had been forwarded to the Hospice and the Hospice issued certain records to the applicant on foot of the request.

On 24 March 2014 the applicant wrote again to the HSE to clarify that he had requested relevant records held by the HSE and he stated that if the HSE's letter of 27 February 2014 constituted a decision that it held no records relating to his request, he wished to have an internal review of that decision undertaken. By letter dated 2 April 2014, the HSE informed the applicant that the assessment in question had been carried out by the Hospice and that it had transferred his request under section 7(3) of the FOI Act as it considered that the relevant records would be held by the Hospice. It further stated that the only records which it held within the scope of the applicant's review were two emails that had been released to the applicant by the Hospice following the transfer of the request.

However, in his letter of 29 April 2014, the applicant argued that the HSE was wrong to transfer the request as he considered that it did, indeed, hold relevant records. He requested the HSE to fully consider his request. While the HSE did not treat that letter as a new request, it replied to the applicant by letter dated 21 May 2014, wherein it stated that it had checked with relevant staff who had confirmed that they did not hold any relevant records and that the records were held by the Hospice. By letter dated 11 June 2014, the applicant indicated that he was taking the HSE's response as a refusal of his request and he applied for an internal review of that refusal. By letter dated 23 July 2014, the HSE reiterated its view that the request had been correctly transferred to the Hospice.

On 31 July 2014, the applicant wrote to this Office seeking a review of the HSE's decision. This Office accepted the application for review and asked the HSE to inform the requester of its effective position in relation to his request for records. The HSE wrote to the applicant on 1 September 2014 and again explained the basis on which it had decided to transfer the FOI request to the Hospice. It also stated that apart from the two emails released by the Hospice, it held not further relevant records. On 10 December 2014, the applicant again wrote to this Office to express his dissatisfaction with the response he received from the HSE.

During the course of the review, Mr. Art Foley of this Office wrote to the applicant on 27 March 2015 and 17 April 2015 outlining details of the searches carried out by the HSE to locate records coming within the scope of his request, and he informed the applicant of his view that the decision of the HSE to refuse to grant access to the records sought was justified. In response, the applicant indicated that he was not satisfied that this Office had given full and adequate consideration to his application for review. I have decided, therefore, to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the HSE and the applicant on the matter, to communications between this Office and the applicant, and to communications between this Office and the HSE.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing access to the records sought by the applicant concerning an assessment undertaken of his wife's suitability for palliative care on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

The applicant received from the Hospice copies of an email exchange between a member of staff of the HSE and a member of staff from the Hospice in which his wife's assessment is mentioned. The applicant stated that as these records are held by the HSE, it was incorrect to transfer his FOI request to the Hospice. I do not agree that the emails in question provide a basis on which to conclude that the request should not have been transferred as the records in question are not covered by the applicant's FOI request. I fully accept that the HSE acted in good faith and, it would appear, in accordance with the provisions of the FOI Act by transferring the applicant's FOI request to the Hospice. Nevertheless, it is clear that the applicant remains of the view that the HSE holds relevant records as he considers that the HSE played a part in the assessment at issue.

In the normal course, I would expect that a requester would be satisfied for a public body that does not hold relevant records to transfer the request to the public body that holds the records. However, in circumstances where the requester remains of the view that the records sought are, indeed, held by the body to which the FOI request was made and wishes the body to process that request, it seems to me that it would be appropriate for the body to do so. In this case, the applicant informed the HSE that, notwithstanding the release of certain records by the Hospice, he wished the HSE to continue with the processing of his request but the HSE did not do so as it considered that it had acted appropriately in transferring the request. Accordingly, I consider it appropriate to review the deemed refusal of the HSE to grant access to the records sought.

Analysis and Findings

As I have outlined above, the records sought be the applicant in this case relate to the assessment carried out of his wife's suitability for palliative care. The HSE stated that the assessment for palliative care was carried out by members of staff from the Hospice in this case. The HSE stated that its FOI decision maker contacted the Admissions Officer in the Hospice who confirmed that the assessment was carried out by the Hospice and that relevant records were held by the Hospice.

The HSE's position is that the requested records are not held by the HSE. Accordingly, section 10(1)(a) of the FOI Act is relevant in this case. That section provides that a request for access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. This Office's role in cases 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.

In a submission to this Office dated 18 March 2015, the HSE provided details of the searches it undertook in an effort to locate records coming within the scope of the applicant's request, and set out the reasons for which the decision was taken to transfer the applicant's request to the Hospice. The HSE performed further searches and inquiries for the records during the course of this review in response to certain queries raised by the applicant. As I have outlined above, Mr Foley of this Office has provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details here, I confirm that I have had regard to them for the purposes of this decision.

The position of the HSE is that it cannot find any records relevant to the applicant's FOI request. While the applicant may not be satisfied with the HSE's responses, he has provided no supporting evidence to suggest that other records do, indeed, exist. Having reviewed the steps taken by the HSE to locate the records sought, I am satisfied that the HSE has taken all reasonable steps to locate any further records. I find, therefore, that the HSE's was justified in refusing the applicant's request under section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to to refuse access to the records under 10(1)(a) of the FOI Act, on the basis that they do not exist or cannot be found.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator