Whether the HSE was justified in its decision to refuse access to records concerning matters relating to medical card validity and GP capitation payments under section 15(1)(a) of the FOI Act on the ground that no such records exist or can be found

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

On 11 May 2015 the applicant submitted a request to the HSE for the following:

"... all documents with (sic) relate to the decision by the HSE to include the attached document [a notice that the HSE added to GP panel listings in 2012] to all General Practitioners online weekly updates from January 2012.

Documentary evidence of the HSE and/or external staff who approved this document.

All documents relating to the authorisation of the medical card database changes required to implement the decision such that eligibility of individual medical cards was extended from the medical cards actual mid month expiry date to the end of the month of expiry. These database changes appear to have been implemented during December 2011 or January 2012.

Any correspondence from the Irish Medical Organisation, General Practitioners or their Practice Staff and Politicians querying the validity dates of medical cards.

The HSE and PCRS responses to queries about medical card database and medical card validity changes."

The HSE did not respond to the applicant's original request. On 13 July 2015 the applicant sought an internal review of the HSE's deemed refusal. On 18 August 2015 the HSE issued an internal review decision in which it refused the applicant's request under section 15(1)(a) of the FOI Act, on the ground that the records sought did not exist.

While the applicant sought a review by this Office on 17 August 2015, before the HSE's internal review decision had been issued, the application for review was accepted on 28 August 2015, at which stage the applicant had received the internal review decision.

In conducting this review I have had regard to the correspondence between the applicant and the HSE, and to correspondence between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is concerned with the question of whether the HSE was justified in refusing access to records concerning matters relating to medical card validity and GP capitation payments under section 15(1)(a) of the Act on the ground that no such records exist or can be found.

Preliminary Matters
The applicant's original request to the HSE would appear to have its origins in a dispute between the applicant and the HSE as to the significance of the note that the HSE added to GP panel listings in 2012. The applicant argues that the introduction of that note marked a unilateral change in how GP capitation payments are calculated by the HSE for services provided under the General Medical Services scheme.

The HSE has informed this Office that the note was included at the time as part of its ongoing efforts to improve communications with its contractors and because it had been made aware of confusion on the specific matter addressed in the note. It stated that no change was made to the contracted payment regime to GPs at that time, prior to, or following that time.

It is important to note that the Commissioner's remit does not extend to adjudicating on how FOI bodies carry out their functions generally or to investigating complaints against FOI bodies. This Office has no role in determining the validity, or otherwise, of the applicant's argument as to the effect of the introduction of the note in question.

I would also like to take the opportunity to highlight the significant difficulty this Office faced in obtaining from the HSE information that was deemed necessary for the review to proceed. Mr Benjamin O'Gorman of this Office contacted the HSE on 8 October 2015 to clarify what searches had been undertaken to identify all relevant records and he sought specific information from the HSE in relation to certain types of records that the applicant believed to be outstanding. He sought a response to his queries by 22 October 2015. When the HSE replied on 27 October 2015, it did no more that provide a further copy of its internal review decision and failed to address Mr O'Gorman's queries. A detailed response was not provided until 11 November 2015. It is most unsatisfactory that the HSE failed to properly consider Mr O'Gorman's correspondence. Had it done so, this review would have been brought to a conclusion much earlier.

Analysis and Findings

Section 15(1)(a) of the 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 a case such as this is to review the decision of the FOI body and to decide whether that decision was justified.

During the course of the review, Mr O'Gorman contacted the HSE to clarify what searches had been undertaken to identify all relevant records and he sought specific information from the HSE in relation to certain types of records that the applicant believed to be outstanding. In its submission of 11 November 2015, the HSE stated that during the course of preparing its response, records within the scope of the applicant's request had been found. It identified 43 records as potentially coming within the scope of parts 1, 2, 4, and 5 of the request. It explained that the records were not previously identified on the basis of its understanding that the request was made in relation a change in the capitation payment scheme that the HSE considers had not actually happened, and that it did not hold any records relating to a change that had not taken place.

It is clear from the HSE's response, and having regard to the wording of the applicant's request, that the HSE did not take all reasonable steps to locate all records relevant to the applicant's request. In fact, it is appears to me that the HSE did not undertake any searches for the records requested, either when the applicant made her original request in May 2015, or when the HSE made an internal review decision in July 2015, based on a misunderstanding of the nature of the request made.

Accordingly, I find that in the circumstances of this case, the HSE was not justified in its decision to refuse the request under section 15(1)(a) of the Act. As the 43 records identified by the HSE during the course of this review have not been formally considered for release, I am satisfied that the appropriate course of action to take is to annul the HSE's decision and to direct it to undertake a fresh decision making process in relation to the request.

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 to refuse the request under section 15(1)(a) of the Act, and I direct it to undertake a fresh decision making process in respect of the original 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