Case number: 170576
6 April 2018
The applicant submitted a request to the Hospital on 24 August 2017 for the mater.ie email addresses of all consultants employed by the Hospital including their specialist department and the email addresses of any other relevant person for their correspondence, along with the mater.ie email addresses of all clinical departments in the Hospital and all clinical nurse specialists (including specialism and department). As the Hospital did not issue a decision within the required time frame, the applicant sought an internal review of the deemed refusal of his request. On 8 November the Hospital issued a late decision on the request in which it explained why it did not hold a comprehensive list of the information sought. It also provided a list of all consultants working in the Hospital at that time.
On 9 November, the applicant sought a review by this Office of the Hospital's decision having regard to the manner in which the Hospital had processed his request. Following correspondence with this Office, the Hospital wrote to the applicant on 5 December 2017 in which it affirmed the original decision. The applicant informed this Office that he was not satisfied with the Hospital's response and that he wanted the review to proceed.
During the course of the review, the Hospital provided the applicant with a list of all relevant individuals, their specialism, and mater.ie email addresses where available, as of January 2018. It also provided this Office with details of its applicable email address usage policy and of the searches conducted to locate all relevant records. Ms McCrory of this Office provided the applicant with details of those searches by email on 12 March 2018. She also informed the applicant of her view that the Hospital was justified in deciding that no further relevant records exist or could be found. The applicant was invited to make a further submission, which he subsequently made on 13 March 2018. Having regard to that submission, 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 Hospital and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Hospital on the matter.
It is the Hospital's position that all relevant information held has been released to the applicant. Accordingly, this review is concerned solely with whether the Hospital was justified in its decision to refuse the applicant's request for further relevant records on the ground that no further relevant records exist or can be found.
The Hospital's handling of the applicant's request was very poor. The Act requires public bodies to issue decisions on requests within four weeks of receipt. Almost eleven weeks passed before the Hospital issued a decision in this case. In the intervening period, the applicant had sought an internal review of the Hospital's deemed refusal of his request as provided for in the Act, but apparently the Hospital sought the applicant's agreement to wait until it had issued its decision on the matter. The applicant emailed the Hospital again on at least two further occasions before the Hospital eventually issued its decision on 8 November 2018.
This is unacceptable. I fully accept that there may be occasions where public bodies miss statutory time-frames for issuing decisions. Indeed the Act itself recognises this possibility by allowing requesters to treat failures to issue timely decisions as deemed refusals. However, there is simply no excuse for the Hospital not following the process set out in the Act for dealing with such matters. In this case, the Hospital should have accepted the applicant's request for internal review and issued a response within three weeks of receipt, wherein it should also have informed the applicant of his right to apply to this Office for a review of that decision. I expect the Hospital to take note of these comments and to take appropriate measures to avoid a repeat of this issue.
Turning to the substantive issue, the Hospital's position is that it has, at this stage, provided the applicant with all information it holds coming within the scope of his request. As I have outlined above, it provided the applicant with a list of the names of all consultants, clinical nurse specialists, and relevant secretaries, their respective departments and specialisms and their mater.ie email account details where available.
The Hospital explained that it compiled the list having obtained the names of all relevant individuals from its Human Resources Department and having obtained a complete list of mater.ie email accounts for those individuals, where they exist, from its Information Management Department. It stated that there are a number of reasons why certain individuals do not hold mater.ie email accounts. For example, many consultants working at the Hospital hold a contract with two or three hospitals and some hold primary contracts with other hospitals and have email accounts provided by those hospitals. It also stated that some consultants do not use email as a form of communication, and communications with such consultants is by way of phone or letter.
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. In such cases, this Office has regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision that no further relevant records exist or can be found. We also assess the adequacy of the searches conducted by the 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.
Having considered the applicant's further submission of 13 March 2018, it seems to me that he accepts that the Hospital has, at this stage, released all relevant information it holds coming within the scope of his request. His submission is more concerned with the manner in which the Hospital dealt with his request throughout the process. He argued that "the fact that they [the Hospital] subsequently acted to provide some of the requested information should not allow them to represent themselves as having taken all reasonable steps prior to [him] lodging the appeal" and he suggested that this should be reflected in the findings of this review. He went on to contend that this Office could not in his view credibly affirm the decision of the Hospital as of the date the appeal was lodged, and stated that "in fact their [the Hospital's] subsequent actions actually demonstrate that decision as incorrect and validates [his] appeal [to this Office]".
While I can fully understand the applicant's frustrations, I should explain that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision. For example, my review is not restricted to considering whether the Hospital took all reasonable steps prior to his application to this Office only and I am entitled to consider the circumstances as they pertain at the time of my decision.
As I have outlined above, this review is concerned solely with whether the Hospital was justified in refusing to release further relevant records on the ground that no further relevant records exist or can be found. Based on the details of the Hospital's submission, I am satisfied that it has taken all reasonable steps to locate all relevant records sought by the applicant. I find, therefore, that the Hospital was justified in its decision to refuse the applicant's request for access to further relevant records on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital in this case.
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.