Whether the HSE was justified in its decision to refuse access to further records relating to a service agreement between the applicant and the HSE on the grounds that no further records exist or could be found under section 15(1)(a) of the FOI Act 

19 April 2018 

Background

On 8 August 2017 the applicant submitted a request, through his solicitor, for all records held by the HSE relating to an agreement between the HSE and the applicant's company for medical device reprocessing services from the period June 2013 to the date of his request. On 4 September 2017, the HSE issued a decision in which it stated that it had decided to grant the request. The applicant sought an internal review of that decision on 26 September 2017 on the ground that further records should have been released in response to his request. 

In its internal review decision of 23 October 2017, the HSE stated that additional records had been found following a further search and it granted access to those records. It stated no no further relevant records could be found, apart from those already released. On 27 November 2017, the applicant sought a review by this Office of the HSE's decision. 

During the course of the review and following correspondence with this Office, the HSE identified and provided the applicant with a number of further records, comprising unopened emails the applicant had sent to the HSE. It also provided comprehensive details of the various searches it had undertaken to locate relevant records. On 13 February 2018, Ms Hannon of this Office provided the applicant with details of the searches undertaken by the HSE and she informed the applicant of her view that the HSE was justified in deciding that no further records exist or could be found. However, the applicant was not satisfied that he had received all relevant records and he made a further submission on the matter. 

I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the HSE and to the correspondence between this Office and both the applicant and the HSE on the matter. 

Scope of the Review

This review is concerned solely with whether the HSE was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to further records coming within the scope of the applicant's request for records relating to an agreement between the HSE and the applicant's company for medical device reprocessing services from the period June 2013 to the date of his request on the ground that no further relevant records exist or can be found.

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. 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.  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 FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office 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. 

As I have outlined above, Ms Hannon of this Office provided the applicant with details of searches undertaken by the HSE in an effort to locate all relevant records coming within the scope of his request. Therefore, while I do not intend to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.

In summary, the HSE stated that searches were undertaken for both manual and electronic records at the time it made its original FOI decision and then again at internal review stage. It stated that all relevant computer systems were searched using specific search terms. It said there was also a physical search of all relevant areas within the Health Business Service (the HBS) Procurement division of the HSE including searches of filing cabinets and contemporaneous notebooks.  All relevant individuals, including every member of the procurement team, were consulted and their records searched. The HSE said it was of note that the contract awarded to the applicant did not arise from a formal procurement process which would have given rise to a more detailed contract file. 

In a submission to this Office, the applicant stated that it would be inconsistent with the nature and course of conduct of dealings as between the applicant and the HSE that a contract would be entered into without any internal communications in the HSE. The applicant queried why there were no records of phone calls between the applicant and representatives of the HSE. In support of that argument the applicant provided copies of notes he had made of calls between himself and the HSE and a copy of his phone bills during the specified period. In response to a request for clarification, the HSE stated no recordings of telephone calls exist in relation to the applicant's FOI request. It said there is no formal policy in relation to documenting phone calls; that calls are not logged or recorded and no notes of calls were located during its searches. The applicant also queried the involvement of a named third party consultant. Following a request for clarification, the HSE stated the specified consultant was not engaged by the HSE in this matter but by a local authority.

While the applicant may be unhappy with the HSE's responses, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The applicant clearly feels that the HSE should have recorded more details of its interactions in relation to the creation of the service agreement.  However, the FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist. I should also explain that this Office has no role in examining the administrative actions of public bodies. 

The position of the HSE is that it has taken all reasonable steps to look for the records sought. Having regard to the searches undertaken by the HSE and explanations provided, I consider that the HSE has taken all reasonable steps to ascertain the whereabouts of further relevant records. I find, therefore, that it was justified in refusing access to further records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse access to further relevant records under section 15(1)(a) on the ground that no such records exist or can be found.  

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