13 June 2018

Whether the HSE was justified in refusing to release further records relating to the applicant's request for details of the exact amount allocated by the HSE to a named voluntary organisation in respect of the provision of services for his daughter for a specified period on the ground that no further records exist

Background

On 14 November 2017 the applicant sought details of the exact amount allocated by the HSE to a named voluntary organisation ("the organisation") that provides services for people with intellectual disability towards the allocated budget for the provision of services for his daughter for the years 2013 to 2016 and 2017 to the date of his request. As he did not receive a decision on his request within the statutory time frame, he sought an internal review of the deemed refusal of his request on 8 January 2018.

On 13 February 2018 the HSE issued its decision on the request in which it indicated that it had decided to grant the request and it released a record that had been prepared by the organisation. Subsequently, on 28 February 2018, the HSE issued an internal review decision in which it affirmed the original decision. On 26 March 2018 the applicant sought a review by this Office of the HSE's decision on the basis that the document released was not a record held by the HSE as requested originally. 

In correspondence with this Office, the HSE stated that the information sought was not available from the HSE and that it was sought from the organisation in an effort to assist the applicant. This Office subsequently accepted the application for review on the basis that the HSE had not granted access to records held by it.

During the course of the review, the HSE identified and released one record it deemed relevant to the applicant's request. Subsequently, Ms Whelan of this Office provided the applicant with details of the HSE's submissions regarding its records management practices and search details. She informed the applicant of her view that the HSE had carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records and that it was justified in refusing the request on the ground that the additional records sought in the original request do not exist. She invited the applicant to make a further submission on the matter. The applicant made a further submission. I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the HSE as set out above and to the communications between this Office and both the HSE and the applicant on the matter. 

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access, under section 15(1)(a), to additional records containing details of the amounts allocated by the HSE to the organisation towards the allocated budget for the provision of services for his daughter for the periods in question on the ground that the records sought do not exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises 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 its submission to this Office, the HSE stated that it holds no records relating to the applicant's daughter for the period 2013 to 2016. It stated that prior to 2016, a rehabilitative training place was allocated to the applicant's daughter but that she was not allocated any individual funding from the HSE. It explained that there are a number of rehabilitative training places available with the organisation which are funded by the HSE's Rehabilitative Training Department. It explained that while individuals access these places for a period of two or three years, the funding is allocated by the HSE in respect of the programme rather than being allocated to the individual participating in the programme.

The HSE further stated that the record released during the review outlines the full year allocation of funding as assigned in 2016 when the applicant's daughter graduated from her Rehabilitative Training course and the pro rata amount of the total allocation which was actually paid in 2016 from September to December that year when the day service was set up. It stated that the funding allocation became core funding after the initial allocation in 2016 and as a consequence, it does not hold a record in relation to the amount allocated in 2017 in respect of the provision of service for the applicant's daughter.

In short, the HSE stated that its monitoring of agencies such as the one in question is conducted on the basis of capacity rather than on individually named people and as such, it does not hold any records falling within the scope of the request. It stated that the decision maker was aware that a record of the information sought was not held by it but that in good faith and in an effort to assist the applicant, a copy of the relevant information was sought from the organisation.

In his submission to this Office, the applicant has drawn attention to the document that was prepared by the organisation and that was released by the HSE in response to the original request. The document contains a footnote in respect of the itemised amounts under the headings "Rehabilitation Training Programme" and "Rehabilitative Training Allowance" which states that the data was extracted from HSE correspondence on the Rehabilitative Programme per academic year. He argued that this proves that the HSE had the records requested in its possession. I disagree. The question of how the organisation accounts for the funding it receives is a matter for that organisation and is not a matter to which this Office can have regard. I see nothing in the record which would cause me to dispute the HSE's assertion that the funding paid to the organisation was allocated by in respect of the programme rather than being allocated in respect of individuals participating in the programme.

Having considered the HSE's explanation as to why it does not hold the records sought, I find that the HSE was justified in refusing access to any additional records on the ground that no further relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to additional records coming within the scope of the applicant's request 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