Whether the HSE was justified in its decision to refuse access to minutes of an alleged meeting on the basis that the record does not exist or cannot be found after reasonable steps to ascertain its whereabouts have been taken

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 23 June 2015 for minutes of a meeting that she understood was held in the HSE in Galway or Castlebar to consider her book. After seeking clarification from the applicant, the HSE issued a decision on 5 August 2015 to refuse the request on the ground that no records exist of the meeting taking place or of minutes from the meeting. The applicant sought an internal review of the HSE's decision on 7 October 2015. The HSE issued its internal review decision on 15 October 2015, and affirmed its original decision, on the basis that the record sought does not exist. The applicant sought a review by this Office of the HSE's decision on 21 October 2015.

I note that Mr Art Foley of this Office wrote to the applicant on 10 February 2016, providing details of the searches the HSE had carried out for records within the scope of her request, and of the record management practices of the HSE in relation to minutes of meetings held. Mr Foley contacted the applicant again on 17 February 2016 to provide her with further details of the searches performed by the HSE, and informed the applicant of his view that the HSE was justified in its decision to refuse the applicant's request under section 15(1)(a) of the FOI Act. The applicant has indicated that she wishes this review to proceed to a decision. I therefore consider that this review should be brought to a close by issue of a formal, binding decision.

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

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to the minutes of a meeting that the applicant believes was held to consider her book on the ground that no such record exists or can be found.

Analysis and Findings

Section 15(1)(a) of the Act provides that a request for access to records 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. This Office's role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. 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 v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

The HSE, in submissions to this Office dated 8 and 16 February 2016, provided details of the searches it undertook in order to locate the minutes sought by the applicant. Mr Foley has provided the applicant with details of the searches performed by the HSE through a letter and telephone call, as I have outlined above. While I do not propose to repeat those details in full in this decision, I confirm that I have had regard to them for the purposes of this decision.

The HSE stated that is has performed searches for the minutes sought in the Mayo Community Services Area Manager's Office and the General Manager's Office of the Home Help Department, and the Corporate Employee Relations Department in the HSE West. It stated that where minutes are taken of meetings, these are securely held in electronic and hard copy formats. The HSE has stated unequivocally that no meeting took place at which the applicant and/ or her book was discussed. I have no reason to doubt the HSE in this regard and the applicant has presented no evidence to support her view that such a meeting took place.

Having considered the submissions of both parties, and the steps taken by the HSE to locate the minutes sought by the applicant, I am satisfied that the HSE has taken all reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the HSE's decision to refuse the applicant's FOI request under section 15(1)(a) of the FOI Act was justified on the basis that the record sought does not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator