Whether the HSE was justified in refusing a request for copies of correspondence of a named HSE official with various parties relating to the applicant on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the HSE on 9 February 2015 for access to certain correspondence between a named official of the HSE and named third parties relating to him from January 2012 onwards. As the HSE failed to issue a decision in response to the request within the statutory deadline provided by the FOI Act, the applicant sought an internal review on 14 April 2015. The HSE issued its internal review decision on 5 May 2015, in which it refused the request on the grounds that the records requested do not exist or cannot be found. The internal review decision stated that the HSE had "been unable to locate such records requested due to the fact that (the named officer) has since retired (July 2013), his email account has been shut down and where access to complete mailboxes has not been possible". The applicant applied to this Office for a review of that decision on 6 May 2015.

Mr. Christopher Campbell of this Office contacted the HSE on 24 June 2015, requesting details of searches undertaken in relation to the request. While the HSE has not formally responded to Mr Campbell's queries to date, it indicated that certain records had been located and would have to be examined for relevance. Accordingly, I now consider that this review should be brought to a close by means of a formal binding decision.

In conducting this review I have had regard to the communications of the HSE on this case, to the submissions of the applicant, to the internal review decision of the HSE, and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records requested under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner'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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. 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. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its 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 this Office's website,www.oic.ie).

As I have outlined above, the HSE has informed this Office that many hundreds of potential records had been located following a computerised search. While it has raised concerns about the resources required to determine what records, if any, came within the scope of the request, it is clear to me, therefore, that the HSE was not justified in deciding to refuse the request on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Accordingly, I find that the HSE was not justified in deciding to refuse the request under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the HSE, and direct that it undertake a fresh decision making process on the applicant's request.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator