Whether the DDMBA was justified in its decision to refuse access to details of successful appeals, broken down by category, for Primary Medical Certificates for the years 2010 to 2017 under section 15 (1)(a) of the FOI Act on the ground that no record containing the information sought exists 

17/09/2018

Background

The HSE is responsible for processing applications for a Primary Medical Certificate (a certificate confirming the severe and permanent disability of individuals coming with one of six specified categories). The DDMBA is an independent body that was established to review unsuccessful applications for such Certificates. On 11 November 2017, the applicant submitted a request under the FOI Act to the DDMBA, through the National Rehabilitation Hospital (the NRH), for details of successful appeals for the years 2010 to 2017, broken down by the specified categories. I understand that the DDMBA has a local arrangement with the NRH whereby the NRH facilitates FOI requests on its behalf. For the purposes of this decision, I have treated correspondence issued by the NRH on behalf of the DDMBA as having issued by the DDMBA.

In its response of 14 November 2017, the DDMBA referred to the applicant's own appeal but did not address the FOI request. In essence, the DDMBA failed to issue a decision on the request. On 12 January 2018 the applicant sent an email to an NRH enquiries email address requesting that the matter be investigated. That email was treated as a request for an internal review of the deemed refusal of the applicant's request, following which an internal review decision issued, refusing the request under section 15 (1)(a) on the ground that the records sought do not exist.

During the course of the review, Ms Hannon of this Office contacted the applicant and informed him of her belief that the NRH was justified in deciding that the record sought does not exist under section 15 (1)(a). The applicant was invited to make a further submission which he subsequently made on 3 April 2018. I consider it appropriate to bring this case to a close by way of a formal, binding decision. In conducting the review I have had regard to correspondence between the applicant and the DDMBA and to the correspondence between this Office and both the applicant and the DDMBA on the matter.

  
Scope of the Review

This review is concerned solely with whether the DDMBA was justified in its decision to refuse access to the information sought by the applicant under section 15 (1)(a) of the FOI Act on the ground that the records sought do not exist. 

Preliminary Matters

In his submission to this Office, the applicant referred to an issue concerning the cancellation of an appointment with the DDMBA. It is important to note that this Office has no remit to investigate complaints or to adjudicate on how public bodies perform their functions generally. As outlined above, our role in this case in confined to determining whether the DDMBA has justified its decision to refuse the FOI request.

Analysis and Findings

Section 15- Adequacy of Search
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. 

It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

In its internal review decision, the DDMBA stated that it uses a very antiquated electronic system that captures only very high level information, that breakdown by category is not included, and that there has never been any reporting requirement to capture this information. In its submission to this Office, it stated that the information is not collated in the format sought and that in order to compile the information, all individual hard copy files would need to be reviewed.

In his submission of 3 April 2018, the applicant challenged the DDMBA's contention that there has never been a requirement to record successful appeals. He referred to a response to a Parliamentary Question that issued in June 2017 that contained details of the number of appeals lodged from 2010 to May 2017 and the number of successful appeals for each year. I note, however, that the response did not provide a breakdown by category.

The applicant also argued that creating a table should not be an onerous task, given the number of successful appeals each year. Whether or not that is the case, the only questions I can consider are whether the DDMBA holds an existing record that contains the information sought or whether, under section 17 (4), it can electronically extract the information sought by using any facility for electronic search or extraction that existed at the date of the applicant's request and was ordinarily used by it. Having regard to the DDMBA's explanation of the matter, I am satisfied that the answer to both questions is no.

I am satisfied that the DDMBA does not hold any records that contain the information sought. In the circumstances, I must find that the DDMBA was justified in its decision to refuse the applicant's request under section 15 (1)(a) on the ground that the records sought do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the DDMBA's decision to refuse access to details of successful appeals, broken down by category, for Primary Medical Certificates for the years 2010 to 2017 under section 15 (1)(a) of the FOI Act. 

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