Case Number: 160007

Whether the Hospice was justified in refusing to release further records in connection with the applicant's request for all information pertaining to him held by the Hospice on the ground that no further 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 24 April 2015, the applicant made a request to the Hospice for all information held by it pertaining to him under his own name or as he was referred to in a number of roles. In response to a request made by the Hospice for clarification of the scope of his request, on 24 April 2015 the applicant specified that his request referred to information held by the Hospice's Head of Non-Clinical; HR Department; Hotel Services Manager; Hotel Services Supervisors; Household Supervisors; Catering Officer; Building Services Manager; Director of Nursing; Assistant Directors of Nursing (ECU and PCU); Former CEO and interim CEO.

While the Hospice provided the applicant with a large volume of records, it did not issue a written decision on the request. On 14 July 2015 the applicant sought an internal review of the decision taken on his request as he considered that additional records should have been released to him. On 4 November 2015 the Hospice issued its internal review decision, stating that all relevant records had been released. On 6 January 2016, the applicant sought a review by this Office of the Hospice's decision.

During the course of the review, the Hospice made submissions to this Office, detailing the searches carried out in relation to the applicant's request. I note that Mr Christopher Flood of this Office contacted the applicant on a number of occasions and provided him with full details of those submissions. On 22 April 2016, Mr Flood informed the applicant of his view that the Hospice's decision was justified. However, on 4 May 2016, the applicant stated his desire for a decision to be issued. Accordingly, I have decided to conclude this review by way of a formal binding decision.

In carrying out this review, I have had regard to correspondence between the Hospice and the applicant, as set out above, to the contents of the records that the Hospice provided to this Office for the purposes of the review, to details of various contacts between this Office and the Hospice, and to details of various contacts between this Office and the applicant.

Scope of Review

This review is solely concerned with whether the Hospice was justified in deciding that no further records relating to the applicant's request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 15(1)(a) provides that access to a record 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". In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in these "search" cases generally consists of the steps actually taken to search for the records, along with miscellaneous other information about the record management practices of the public body, insofar as those practices relate to the records in question. 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. This Office's understanding of its role in such cases was approved by Quirke J. 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).

In response to a request from this Office, the Hospice provided comprehensive details of relevant records management practices and the searches taken to locate the records at issue. I do not propose to repeat those details in full as they have already been provided to the applicant. In summary, the Hospice stated that it conducted both manual and electronic searches of all files and locations where it might expect to find relevant records. Though the Hospice stated that it does not maintain evidence of destruction of records, it stated that HSE and data protection regulations are applied in that regard. In relation to the hard drives of former employees, the Hospice stated that these are deleted within six months of departure and that only "high-level" documentation is maintained, i.e. relating to business matters concerning management, as opposed to individuals. In relation to the former CEO, the Hospice stated that any relevant records that remained following their departure were included in in the searches carried out in response to the applicant's request.

Regarding the retention of records in backup digital storage, the Hospice confirmed that it maintains a backup drive on site. However, it stated that the drive was placed into "dormant" mode in February 2016 and that its reactivation would involve repairs and a significant amount of work to search through backup files for the records sought. Furthermore, the Hospice stated that significant costs would be involved in carrying out such works. In the circumstances, I do not consider it reasonable to expect the Hospice to undertake these steps in relation to the applicant's request.

During the course of this review, the applicant expressed his opinion that the Hospice should have a large quantity of other records relating to his request that were not released to him. That opinion was grounded in his contention that the records released to him consist mainly of correspondence between him and the Hospice and that he had not received, for example, any correspondence between his line manager and the HR department mentioning him.

He also provided details of four specific records relating to his request that were not released to him:
a particular email dated 28 July 2014 (copy provided by the applicant to this Office),
a particular email dated 29 July 2014,
an agenda document for a strategy meeting on 29 July 2014 (copy provided), and
a log of alleged misconduct by him in a particular role that had been drawn to his attention by the HR department on 6 August 2015 (copy provided)

In relation to the emails and agenda document above, the Hospice provided this Office with details of the searches carried out in an effort to locate them. It stated that all the personnel included in the scope of the request searched for the records both manually and electronically, using the applicant's name and keywords, but no such records were found. The Hospice stated that, while the relevant parties recalled discussing the matter at issue, they could not recall any such written correspondence taking place.

With regard to the log of alleged misconduct, the Hospice stated in its submissions that the creator of the log compiled it from memory in late July 2015, cross-checking the dates of past events, and sent it to the HR Department on 28 July 2015. The Hospice provided this Office with confirmation of same from the creator of the log and contended that it is not within the scope of release because it was created after the applicant made his request on 24 April 2015.

Nevertheless, in response, the applicant contended in his submissions that a number of matters detailed in the log occurred before his request was made. He argued, therefore, that the Hospice should have other records relating to those incidents or separate log entries that later comprised the log as created in July 2015. However, in its submissions, the Hospice maintained that the log was created from memory and emphasised that no additional records were located following searches in response to the original request, on internal review, and following enquiries from this Office.

As noted above, the applicant provided this Office with copies of a number of relevant records that came into his possession but were not released by the Hospice in response to his request. While it is unfortunate in such circumstances that the Hospice has not been able to locate any further records, I am satisfied with the details provided by the Hospice in relation to the searches undertaken in this case.

Notwithstanding the applicant's belief that further relevant records exist, in the circumstances outlined above, I am satisfied that the Hospice has taken all reasonable steps to locate all relevant records coming within the scope of his request and I find, therefore, that its decision to refuse to release further relevant records on the ground that no such records exist or can be found was justified.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospice 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