Whether the HSE was justified in deciding to refuse access to records relating to a complaint lodged with a named Assistant Director of Nursing under section 15(1)(a) on the ground that they do not exist or cannot be found

04/01/2018

Background

The applicant submitted a request to the HSE on 7 April 2017 for details of a complaint lodged with a named Assistant Director of Nursing (ADN) on 11 January 2017 and the name of the complainant, along with a copy of notes taken by the same ADN at a formal meeting which took place on 28 February 2017. As the HSE failed to issue an original decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request. On 25 July 2017, the HSE issued an internal review decision, in which it stated that no formal complaint was lodged but rather a verbal observation was made. A copy of the minutes of the meeting sought were released.
On 3 September 2017, the applicant sought a review by this Office of the HSE-™s decision to refuse to grant access to the details of the complaint made and the name of the complainant. During the course of this review, the HSE provided the applicant with a copy of a letter dated 16 January 2017 that was sent by the relevant ADN to the Director of Nursing and which contains the ADN's account of events that occurred on the date the applicant alleges a complaint was made.

On 20 December 2017, Ms McCrory of this Office informed the applicant of the details provided by the HSE in support of its position that no further relevant records exist and of her view that the HSE was justified in taking that position. As the applicant has indicated that she requires a formal decision on the matter, I 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 as set out above. 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 solely concerned with whether the HSE was justified in its decision to refuse the applicant-™s request for further relevant records relating to a complaint lodged with a named ADN under section 15(1)(a) on the ground that no further records exist or can be found.

Preliminary Matters

While the applicant is seeking access to records relating to a complaint made, the HSE's position is that no such complaint was made but rather, a verbal observation was made to the relevant ADN. It is not a matter for this Office to determine whether the verbal communication to the ADN was a complaint or merely an observation. Regardless, it is clear that the applicant is seeking access to the source of the communication and to the details of that communication. As such, this review is concerned with whether the HSE holds relevant records containing that information.

I should also explain for the benefit of the applicant that while the FOI Act provides for a right of access to records held by FOI bodies, 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 this case, there is no requirement on the HSE to provide information that is not contained in a record held by it.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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.

In a submission to this Office, the HSE provided details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms McCrory of this Office has already provided the applicant with these details. In summary, the HSE stated that in an effort to locate the records sought by the applicant, it consulted with relevant staff members, who were asked to provide any records related to the request.

The ADN confirmed that the communication in question was made verbally and that she does not keep records of such communications. While the letter of 16 January 2017 refers to a discussion the ADN had with another member of staff in relation to that communication, the ADN stated that that discussion was not an interview and no notes were taken of the discussion. The ADN also stated that she had thoroughly searched her file notes in relation to the applicant and that no other relevant records were found.

Having regard to the details provided by the HSE, and in the absence of evidence to suggest that other relevant records should exist, I am satisfied that the HSE has taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that the HSE was justified in its decision to refuse the applicant's request for access to further relevant records on the ground that no such records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

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