Whether the HSE was justified in deciding to refuse access to a record which referred to the applicant on the ground that the record no longer exists

10/07/2018

Background

The applicant in this case was aware that at some stage in August 2017, a document had been submitted to the management of the hospital where she works in which she was mentioned. On 2 January 2018, she submitted a request for all records received by hospital management between 1 August 2017 and 30 August 2017 referring to her. She also requested copies of any other correspondence which referred to her or contained another person-™s views or opinions of her.

On 11 January 2018 the HSE refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records existed or could be found. The applicant sought an internal review of the HSE's decision, following which the HSE affirmed the refusal under section 15(1)(a). The applicant sought a review by this Office of the decision of the HSE. In her correspondence with this Office, she explained that she was seeking access to the document that she was aware had been submitted to management.

I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to the communications between the HSE and the applicant, and to the communications between this Office and both the applicant and the HSE on the matter. 

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse the applicant's request for a records referring to her and a number of other individuals under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) 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 "search case" 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 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.

In its submission of 12 June 2108 to this Office, the HSE stated that a staff member of the hospital forwarded a document to the Operations Manager/Deputy General Manager on 15 August 2017 and asked, in a cover note that the document be read and treated confidentially. The HSE stated that the document had been saved in a public folder on a specific computer and that another staff member accessed the document and took photo shots of it.
The HSE added that a meeting was held between the Deputy General Manager and the author of the document with his Line Manager on 18 September 2017, at the end of which the author withdrew the document and confirmed that he had done so in a follow-up email. The author also confirmed that had removed the document from the relevant computer a number of days prior to the meeting. It stated that on receipt of this email the document at issue was deleted from the Deputy General Manager's system on 26 September 2017.

In relation to the searches undertaken on foot of the request, the HSE stated that searches were conducted  on the email address of the Operations Manager/Deputy General Manager and that it no longer exists. It stated that the Line Manager was consulted and that the Line Manager does not have a copy of the document. It stated that as the document was not shared by the Operations Manager/Deputy General Manager, no further searches were required.
Following receipt of the HSE's submission, Ms Whelan of this Office sought further details from the HSE relating to the searches undertaken. In response, the HSE stated that a further search of two computers led to the discovery of a copy of the record on one of the computers.

Accordingly, I am satisfied that the appropriate course of action to take at this stage is to annul the HSE's decision to refuse the request under section 15(1)(a). The effect of this is that the HSE must consider the applicant's requests afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the HSE-™s decisions. I would also draw the HSE's attention to sections 13(2)(d) and 21(5)(c) which require public bodies to provide reasons for refusing requests, details of the provisions on which the refusals are based, and findings on any material issues relevant to those decisions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse access to the record sought by the applicant under section 15(1)(a). I direct the HSE to conduct a fresh decision-making process in respect of the applicant-™s original request.

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