Whether the NAS was justified in its decision to refuse access to further records containing emails referencing the applicant and any related documents under section 15(1)(a) of the FOI Act on the grounds that no further records exist or could be found

10 December 2018

Background

On 14 August 2017 the applicant submitted a request for all emails held by the NAS containing references to him, and for all documents referenced in or attached to such emails, from 1 March 2015 to 18 August 2017. On 18 September 2017, the NAS wrote to the applicant stating that it was extending the period for considering his request as the relevant records could not be accessed at that time. It indicated that a decision should issue by 11 October 2017. No decision issued by that date, and the applicant sought an internal review of the deemed refusal of his request on 1 December 2017. 

The NAS issued a decision on 20 December 2017 in which it stated that it had decided to part grant the request. It refused access to records created before 2016 under section 15(1)(a) on the ground that no such records existed or could be found and it released other records with some redactions on the ground that they contained personal information relating to third parties and that parts of the records fell outside the scope of the request. On 1 February 2018, the applicant sought a review by this Office of that decision on the ground that he had not received all relevant records and further records should exist.

During the course of the review, the applicant informed this Office that he was aware of the existence of emails that the NAS had not released to him. He mentioned a number of individuals who might have created, or might have been recipients of, emails relating to him. He also provided this Office with a sample email from 2015 that came within the scope of his request.

Following exchanges of correspondence with this Office, the NAS indicated that further searches were carried out and a number of additional records were located. In particular, the NAS stated that the original search had not extended to the applicant's personnel file and that it was subsequently found to hold a number of relevant records. It released the emails in question to the applicant. The applicant subsequently informed this Office that he was still not satisfied that he had received all relevant records. Following further exchanges between this Office and both the NAS and the applicant, a small number of records regarding occupational health/employee relations were located. Following further correspondence, the NAS stated that these records had already been released to the applicant in May and therefore it had not sent them a second time.

The NAS also provided comprehensive details of the various searches it had undertaken to locate relevant records. On 14 August 2018, Ms McCrory of this Office provided the applicant with details of the searches undertaken by the NAS and she informed the applicant of her view that the NAS 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 NAS and to the correspondence between this Office and both the applicant and the NAS on the matter.

Scope of the Review

This review is concerned solely with whether the NAS was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to further records containing emails referencing the applicant and any related documents on the ground that no further relevant records exist or can be found.

Preliminary Matter(s)

The NAS's handling of the applicant-™s request and its subsequent engagements with this Office fell well below the required standards. In the first instance, the NAS failed to issue an original decision, even after it had extended the time period in which it could make such a decision. Furthermore, this Office encountered significant delays in obtaining relevant information in order to progress the review. These delays necessitated a formal notification being issued to the Director General of the HSE under section 45, requiring the provision of the information sought.

Furthermore, I note that the records were released in a rather piecemeal manner, which lent itself to doubt as to whether reasonable searches had, in fact, been conducted. However, I also note that the wording of the request was quite broad and non-specific. Had the applicant been seeking access to specific records he should have made this clear. Similarly, the NAS could have engaged with the applicant at the outset to determine if there were specific types of records that he was seeking.

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 McCrory of this Office provided the applicant with details of searches undertaken by the NAS 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 NAS stated that searches were undertaken for both manual and electronic records at the time it made its internal review decision. It stated that all relevant computer systems were searched using specific search terms, as well as searches of individual staff email accounts. It said there was also a physical search of all relevant areas within the NAS division of the HSE including searches of filing cabinets and personnel files. All relevant individuals, including all members of the relevant section of the NAS, were consulted and their records searched. The NAS noted that the search was conducted through staff email accounts as the NAS uses several systems and platforms depending on the section's geographical location, and no centralised server system exists. It noted in its submission that the multiple systems were never amalgamated, and therefore the ICT Department of the NAS could not conduct centralised searches. 

In a submission to this Office, the applicant stated that emails dated from 2015, and some emails from 2016/2017, should exist because he had copies of such emails, and they were of such a nature that they should be retained by the NAS. He queried why there were no records of emails between his supervisors related to certain matters for similar reasons. In support of that argument the applicant provided emails that he had from 2015 involving the named supervisors that had not been provided to him by the HSE on foot of his request. He also contended that the NAS should have a corporate or enterprise email server, which acts as a system-wide email storage and retrieval facility. In response to a request for clarification, the NAS stated no copies of such emails exist in relation to the applicant's FOI request apart from a small number located on his personnel file which were subsequently released to him in the course of this review. It stated there is no formal policy in relation to the filing of emails, and that due to storage capacity emails can be routinely deleted by NAS staff members. However, it noted that emails containing personal information relating to a member of staff would normally be kept on file in a staff member's personnel file and would only be deleted from an email account after such filing had taken place.

While the applicant may be unhappy with the NAS'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 NAS should have kept copies of all emails related to him outside of generic rosters and emails regarding scheduling, and that a centralised system for searching emails should exist. 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 exists. I should also explain that this Office has no role in examining the administrative actions of public bodies. 

The position of the NAS is that it has taken all reasonable steps to look for the records sought. Having regard to the searches undertaken by the NAS and explanations provided, I consider that the NAS has taken all reasonable steps to ascertain the whereabouts of further relevant records at this point. 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 NAS'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