Whether the HSE was justified in its decision to refuse access to information about the on-campus attendance of the General manager of Letterkenny University Hospital under section 15 (1)(a) of the FOI Act on the ground that no record containing that information exists  

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 5 April 2017, the applicant made a request to the HSE for the following information: " how many days ... the General Manager of Letterkenny University Hospital was on the Letterkenny University Hospital Campus during the calendar year 2015 and the calendar year 2016". On 8 June 2017, the HSE issued a decision in which it refused the request on the ground that the information sought would fall within the definition of personal information about the individual concerned. The applicant sought an internal review of that decision on 29 June 2017. The HSE issued its internal review decision on 12 July 2017, in which it refused the request on the ground that the request was not a valid FOI request. On 26 July 2017, the applicant sought a review by this Office of the decision of the HSE.

By letter dated 19 October 2017, Ms Hannon of this Office provided the applicant with details of the explanation provided by the HSE as to why it does not hold a record containing the information sought and she informed him of her view that the HSE was justified in refusing the request. Ms Hannon invited the applicant to make a further submission but he has not done so. I therefore consider it appropriate to conclude this review by means of a formal, binding decision. 

In carrying out my review, I have had regard to the correspondence between the HSE and the applicant. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing to provide details of the number of days the General Manager of the Letterkenny University Hospital (the Hospital) was on campus during 2015 and 2016 on the ground that no record containing the information sought exists. 

Analysis and Findings

While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices in certain circumstances. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

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. The role of this Office in cases such as this is to review the decision of the FOI 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 

In a submission to this Office, the HSE stated that it had established that no records exist containing the information sought. It stated that the General Manager is not required to sign a daily attendance sheet or record his attendance in an electronic system that records his work location. It stated that the General Manager's secretary operates a calendar of meetings but that the calendar does not record when the General Manager would have returned to campus or when he may have been on campus when he was not scheduled to be so. Essentially, its argument is that it holds no record that would provide a definitive number of days the General Manager was on campus.

It appears that the applicant is of the view that there are several sources of information available to the Hospital to allow it to collate the information sought. Notwithstanding the Hospital's argument that it could not provide an accurate response, the FOI Act does not require such an exercise to be conducted, as I have explained above. Having regard to the HSE's explanation of the recording of the General Manager's attendance, I find that the HSE was justified in its decision to refuse the applicant's request under section 15 (1)(a) of the FOI Act on the ground that no record containing the information sought exists. 

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 details of the number of days the General Manager of Letterkenny University Hospital the Hospital was on campus during 2015 and 2016 on the ground that no record containing the information sought exists. 

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