Whether the HSE was justified in its decision to refuse access to records relating to a decision on the allocation of ambulance services on the grounds that the records do not exist or can not 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 1 July 2015 for access to all records relating to discussions and consultations surrounding the decision to allocate a new ambulance to Mulranny & Tuam but not to Loughglynn, to include all records held with regard to the opening of Mulranny & Tuam ambulance stations. He further sought records relating to discussions and consultations with regard to the opening of Loughglynn Ambulance Base.

In its decision, issued 31 July 2015, the HSE refused access to records relating to an ongoing external review under section 29(1)(a) on the ground that the review was incomplete and a matter of deliberative process. It decided to release 10 records in response to the applicant's request for records relating to the decision to allocate new ambulance bases to Mulranny & Tuam but not to Loughglynn. It stated that it had no records of meetings between the HSE, SIPTU and the LRC as the National Ambulance Service (NAS) was not responsible for taking notes at those meetings. Finally, it stated that records relating to the issue of locating ambulance bases at Mulranny and Tuam had been sought from NAS West but had not been received, and that it would issue a supplementary decision when those records became available.

The applicant sought an internal review of that decision by letter dated 28 August 2015. In that letter, he stated that his request made no reference to the review report that had been withheld. He restated that he required all records relating to the decision to allocate a new ambulance to Tuan and Mulranny but not Loughglynn. The HSE issued its internal review decision on 17 September 2015 in which the internal reviewer stated that he was upholding its original decision. The internal review decision referred to five additional records which had been made available for consideration since the initial request. It appears that the additional records were released to the applicant, including a letter dated 16 September 2015 from the NAS West Area Operations Manager to the applicant relating to the decision process relating to the location of additional ambulance bases in the West and the rational for prioritising Tuam and Mulranny.

The applicant applied to this Office for a review of the HSE's decision on 21 September 2015. He contended that there appeared to be no documentation from the NAS between 2011 and 2015 to justify the decision to prioritise two out of the three ambulance stations for the allocation of an ambulance. In conducting this review I have had regard to the communications between this Office and both the applicant and the HSE and to the communications between the applicant and the HSE on the matter.

Scope of Review

The HSE contends that it has issued all records relating to the applicant's request. Accordingly, this review is concerned solely with the question of whether the HSE was justified in deciding that no further records exist or can 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).

In its submission of 11 November 2015 to this Office, the HSE stated that there are no records relating to the decision to allocate a new ambulance to Mulranny and Tuam but not to Loughglynn as no such decision was made. It provided details of the background to the provision of ambulance services at Tuam and Mulranny. It also provided details of the position with respect to Loughglynn. It stated that following the assignment of additional resources in 2011, the NAS identified a number of locations in the Roscommon area to locate the additional resources in order to maximise ambulance cover geographically. It explained that one of the options considered was conversion of the former Garda station at Loughglynn for use as an ambulance base. It described progress on that matter as follows:
The NAS commenced a process in November 2012 for acquiring the former Garda station and for capital funding to make the premises fit for purpose. The process was completed and funding was approved in 2014 for refurbishment and purchase of the property. Refurbishment works have been completed and NAS staff will be deployed to the base at Loughglynn, following completion of discussions with staff and their trade union through the Workplace Relations Commission

The HSE contended that the schedule of records released are evidence of the fact that the record sought by the applicant does not exist and provide supporting evidence to the actual proposals, plans and development of services in the west Region from 2012 to 2015. It stated that it is mindful of its obligations under the FOI Act but must measure and balance this against what can be achieved within the timeframes set out to respond to requests and what is considered practical in terms of the work entailed in processing requests. It stated that this work may not impinge upon staff performing their main functions in providing service first and foremost in order for request not to fall to be refused under section 15(1)(c) from the outset. Finally, it stated that the NAS is satisfied that it narrowed the scope of the search and retrieval of such documentation and determined that the records and explanations provided to the applicant in relation to the development of services in the West region from 2011 to 2015 satisfied the request.

I should say at the outset that I fully accept that the HSE is entitled to have regard to the impact that processing an FOI request may have on its other work. Indeed, in recognition of the potential impact of processing of requests on the other work of FOI bodies, section 15(1)(c) of the FOI Act provides for the administrative refusal of a request where the body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the body. However the application of the administrative refusal is not unconditional. Section 15(4) provides that a body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so as to amend the request for re-submission such that it no longer falls within that section.

In this case, the applicant submitted a broad request for all records relating to the provision of ambulance services at Tuam, Mulranny and Loughglynn. In his request for internal review, he stated that he was seeking "all of the documentation used to make the decision to allocate a new ambulance to Tuan and Mulranny but not Loughglynn in the 2015 service plan". It appears that the HSE interpreted the internal review request as a narrowing of the scope of the request to a request for only those records that contain details of the basis on which a decision was taken to allocate a new ambulance to Tuan and Mulranny but not Loughglynn. as a result, it decided that no such records exist as no such decision was taken,

In my view, the HSE took an unduly narrow interpretation of the applicant's request. In his application for review to this Office, the applicant referred to the absence of any documentation to justify the decision to prioritise two out of the three locations for the allocation of an ambulance. While the HSE might argue that no decision was taken to prioritise Tuan and Mulranny over Loughglynn, the fact remains that a service was allocated to Tuam and Mulranny before Loughglynn. In such circumstances, it would appear that documentation relating to the allocation of services to all three locations may be of assistance in meeting the applicant's request. Accordingly, it seems to me that the HSE, having identified and released fifteen records, was not justified in finding that no other relevant records exist. Indeed, when making a submission to this Office and in order to assist this Office in conducting the review, the HSE referred to five additional records which may be of relevance.

It is noteworthy that section 11(2) requires FOI bodies to give reasonable assistance to requesters in relation to the making of requests for records. As such it was open to the HSE to clarify with the requester the intended scope of his request. Furthermore, as I have outlined above, if the HSE had concerns as to the potential impact of processing a broad request and was considering whether the request might be refused on those grounds, it would have been obliged to assist, or offer to assist, the requester in narrowing the scope.

Accordingly, I am satisfied that the appropriate course of action in this case is to annul the HSE's decision to refuse access to further relevant records on the ground that no such records exist and to direct it to undertake a fresh decision making process in relation to the applicant's request. The effect of this finding is that the HSE should consider the request afresh and make a new, first instance, decision in respect of them. The applicant would have a right to internal review and to a review by this Office if he is not satisfied with that decision. In making its decision, the HSE must comply with the statutory requirements of the FOI Act. I would suggest that early engagement with the requester would remove any doubt as to the nature of the records sought. On this point, the applicant should note that a request fro access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

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 in this case and direct the HSE to conduct a fresh decision making process in line with the requirements of the FOI Act.

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