Case number: 180178
28 June 2018
On 9 February 2018 the applicant sought access to "the relevant information and paperwork in respect of appealing a decision of the Appeal Committee [of CORU] to the High Court". On 23 February 2018 she clarified that the information sought was that "covered by Section 5.10.7 of the Appeals Procedure". On 16 March 2018 CORU refused the request. It stated that where a right of appeal exists, the information provided would include confirmation of the decision made, a transcript of the proceedings, the documentation considered, and confirmation of the right of appeal together with the section of the relevant Act under which that right exists. It stated that that it already provided the applicant with copies of all documentation it holds relating to her appeal and extracts of the various sections of the Health and Social Care Professionals Act 2005 (the 2005 Act) which detail the decisions that can be appealed. It further stated that it could not provide confirmation of her right of appeal as a final decision had not been made by the Appeals Committee.
On 22 March 2018 the applicant sought an internal review of that decision, following which CORU affirmed the original decision to refuse the request, citing sections 15(1)(a), 15(1)(b) and 15(1)(i) of the FOI Act. On 3 May 2018 the applicant sought a review by this Office of CORU's decision.
During the course of the review, Ms Whelan of this Office provided the applicant with details of CORU's submissions regarding its decision. She informed the applicant of her view that CORU was justified in refusing the request on the ground that no further relevant records exist. She invited the applicant to make a further submission on the matter. As the applicant has made no further submission to date, 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 CORU as set out above and to the communications between this Office and both CORU and the applicant on the matter.
This review is concerned solely with the question of whether CORU was justified in refusing access, under section 15(1)(a), to further relevant records relating to section 5.10.7 of CORU's appeal procedure on the ground that no further relevant records exist.
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 and 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.
CORU's Appeal's Committee hears and determines appeals arising from decisions made by Registration Boards for a range of health and social care professions on the registration of applicants and the recognition of relevant international qualifications for the relevant professions. Under section 5.10.7 of its Appeals Procedure, if the Appeals Committee confirms a registration board's decision, applicants will be provided with information on their right of further appeal to the High Court.
As outlined above, CORU stated that it has already provided the applicant with all relevant records it holds relating to her appeal, including the relevant extracts from the 2005 Act that provide for the right of appeal to the High Court. During a telephone conversation with Ms Whelan of this Office, the applicant indicated that she is seeking access to a record that contains supplementary information on the right of appeal.
In its submission to this Office, CORU stated that no such record exists. It stated that the Appeal Procedures envisage that information regarding the right of appeal to the High Court would be set out in a letter to applicants informing them of the section of the 2005 Act that provides for the appeal and the time period within which the appeal should be brought. It stated that such a letter is prepared only where a right of appeal exists and that no such letter has been prepared in respect of the applicant's appeal as a final decision had not yet been made by the Appeals Committee on her appeal.
Having considered CORU's explanation as to why it does not hold the record sought, and as no evidence has been presented to me to suggest otherwise, I find that CORU was justified in refusing access to any further relevant records under section 15(1)(a) on the ground that no such records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of CORU to refuse access, under section 15(1)(a) of the FOI Act, to additional records coming within the scope of the applicant's request for records relating to the appeal of a decision of the Appeal Committee of CORU to the High Court.
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