Case Number: 160063

Whether the HSE was justified in its decision to refuse access to additional HR records relating to the applicant other than those already released 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 29 October 2015, the applicant made a request to the HSE for a copy of her HR file from 2005 onwards. The applicant worked in a number of different sections within the HSE during the course of her employment. On 24 November 2015, the HSE granted the applicant access to records contained in a "National Recruitment Service Set-Up File", which was created when she began working in a new section in 2015. Some of these records were subject to the redaction of personal information belonging to third parties.

On 30 November 2016, the applicant sought an internal review of the HSE's decision. By email dated 8 February 2016, the HSE varied its original decision and released additional records dating from 2010 to the applicant. The HSE could not locate any HR records relating to the applicant for the years 2005-2009.

On 11 February 2016, the applicant sought a review by this Office of the HSE's decision to this Office on the ground that her complete HR file had not been released to her. During the course of this review, Ms Lydia Buckley of this Office contacted the applicant and provided her with information on the record management practices of the HSE, and details of the searches conducted by the HSE to locate records relating to her HR records. She also informed the applicant of her view that the HSE was justified in its decision to refuse her request on the basis that no further records exist or could be located after all reasonable steps had been taken to locate them. As the applicant has had no further contact with this Office, I consider that this review should now be brought to a close by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between HSE and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the HSE.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision that no further HR records relating to the applicant exist or can be found after all reasonable steps have been taken to ascertain their whereabouts. It should be noted that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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. 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 FOI body, on the basis of which the FOI 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 Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).

In response to a request for further information by this Office, the HSE provided details of the searches taken to locate the records at issue and of relevant records management practices as they pertained at the time. As I have outlined above, Ms Buckley of this Office has already provided the applicant with the details of these searches. In summary, the HSE stated that it conducted both manual and electronic searches of all files and office locations where it might expect to find relevant records. It stated that it conducted these searches in all the different sections within the HSE that the complaint worked during the course of her employment.

The HSE noted that when the applicant was appointed to a new position in the HSE in 2010, her HR file was forwarded to the new section. This file contained all existing HR records relating to the applicant from the years 2005-2009. According to the HSE, the file was stored in an office that was the subject of a subsequent general clear out a number of years ago and it appears that the file was inadvertently disposed of as part of that general clear out. It stated that it had not been normal policy for the section in question to hold HR files locally and that there had been no expectation that the file had been included in the office that was cleared.

While it is very disappointing that a substantial part of the applicant's HR file appears to have been destroyed, this review is limited to considering what records actually exist, as opposed to those that should exist, and what steps have been taken by the HSE to locate these records. Having reviewed the steps taken by the HSE to locate the applicant's HR records and having regard to its explanation for the absence of records from the years 2005-2009, I am satisfied that all reasonable steps have been taken to locate all existing relevant records. I find, therefore, that HSE was justified in its decision to refuse the applicant's request for access to additional records 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 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