Case Number: 160378

Whether the HSE was justified in refusing access to further records relating to a grievance hearing investigation on the ground that no further relevant records exist

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 20 June 2016, the applicant requested a copy of all records held by the HSE in relation to a "Stage 3 Grievance Hearing Investigation", including all records and/or correspondence in relation to the findings of the investigator in the case. The applicant stipulated that his request also referred to any requests for information made by the investigator to Occupational Health, Human Resources, HSE Ambulance Management, or any other member of HSE staff in relation to the hearing investigation.

The HSE decided to grant the request and it released photocopies of all records it had identified as coming within the scope of the applicant's request, apart from those records that had already been provided to the applicant or that had been provided to the HSE by the applicant. The applicant sought an internal review of the HSE's decision. He contended that he had not received all paperwork verifying requests for information made by the investigator to the aforementioned sections or persons. The HSE affirmed its original decision, arguing that it had granted his request in full. The applicant subsequently sought a review by this Office of the HSE's decision.

During the course of this review, submissions were sought from the HSE and the applicant on the matter. Mr Christopher Flood of this Office provided the applicant with full details of the HSE's submissions and informed the applicant of his view that the HSE was justified in deciding that no further relevant records exist. He offered the applicant an opportunity to respond to the HSE's submissions or to withdraw his application for review if he so wished. No response has been received from the applicant to date and I have now decided to bring this review to a close by way of a formal, binding decision. In conducting this review, I have had regard to the records released to the applicant and to the correspondence between the applicant and the HSE regarding the matter, as set out above. I have also had regard to communications between this Office and both the applicant and the HSE in relation to this review.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse to grant access to further records on the ground that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters
It appears from his application to this Office and his internal review request to the HSE that the applicant believes other records should exist relating to the Grievance Hearing Investigation. While the applicant may consider that further records ought to exist, the FOI Act does not provide a right of access to records which ought to exist or oblige an FOI body to create records where none exist.

Analysis and Findings

My jurisdiction under section 22 of the FOI Act is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Therefore, it is appropriate for me to consider the application of section 15(1)(a) in this review, even though the HSE did not explicitly rely on that section in refusing the applicant's request.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. 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 FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. This Office does not normally search for records.

I do not propose to repeat the full details of the HSE's submissions in this review because they have been provided to the applicant already. The HSE stated that it had consulted all relevant individuals in relation to the records sought and it provided details of the searches conducted in relevant locations. The HSE stated that hard copy and electronic records were searched, including the records of the investigator in question. According to the HSE, searches were conducted manually and electronically, using key-words. The HSE confirmed that the relevant investigation file contains all information on the case in question. It stated that this file remains in the possession of the relevant investigator and was thoroughly searched in response to the applicant's request.

Having regard to the explanations provided by the HSE, I am satisfied that it has taken all reasonable steps to ascertain the whereabouts of relevant records. I find, therefore, that the HSE was justified in its decision to refuse to grant access to further records on the ground that no further records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to further records on the ground that they do not exist.

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