Whether the HSE was justified in its decision to refuse the applicant's requests for medical and social work records under section 15(1)(i) of the FOI Act on the ground that the records had already been released to the applicant and are available to her

25/10/2018

Background

The applicant made two separate FOI requests to the HSE, seeking access to her medical and social work records and related records. 
The first request was for the applicant-™s occupational therapy file in full; her social work file in full; her Area Manager file in full; and her disability file in full. On 18 April 2018 the HSE refused the request on the basis that it had granted access to all of the applicant-™s personal information held by the HSE on 16 August 2011 on foot of a previous request. The applicant sought an internal review of that decision, following which the HSE affirmed its original decision.
The second request was in six parts, as follows:

1. All records upon which a named social worker relied in forming an opinion about the applicant
2. A copy of the HSE Policy relied upon in the course of this social worker-™s engagement with the applicant
3. A copy of all risk assessments undertaken as a result of the social worker-™s opinion about the applicant and a copy of the HSE policy or guidance followed in conducting risk assessments
4. All records upon which the social worker relied in forming another opinion about the applicant
5. All records of every communication between the social worker and the Community Healthcare Organisation (CHO) responsible for the care of the applicant
6. All records which relate in any way to the opinions given by the social worker and involving management of the CHO responsible for the care of the applicant or any party outside the CHO.

On 13 April 2018 the HSE part-granted the request. It released copies of certain policy documents but refused access to all other records on the ground that they had already been released to the applicant on 16 August 2011. The applicant sought an internal review of that decision, stating that the records were not available to her. On 9 May 2018 the HSE affirmed its original decision. 
The applicant sought a review by this Office of both decisions. In light of the fact that the parties to the review are the same in both cases and having regard to the nature of the records sought, I have decided to bring these cases to a close by issuing a composite binding decision. In carrying out the review, I have had regard to the correspondence 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

It is the HSE's position that all of the records captured by both requests were previously released to her on foot of an FOI request she made in 2011, apart from the policy type records that were released on foot of the recent requests. Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse to release any additional records under section 15(1)(i) of the FOI Act.

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore in this case, the onus is on the HSE to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Analysis and Findings

Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. For the section to apply, I would expect the public body to be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
In its submission to this Office, the HSE stated that the records sought were previously granted to the applicant on foot of a request she made in 2011. It stated that records held on 11 separate files were released, comprising 1,422 records. It stated that the only information withheld was personal information relating to other parties and it noted that a level of redaction had to take place as the applicant's sister was referenced in many of the records.
The HSE added that the applicant has made three further requests for the information to be released since that request in 2011. It stated that she made a request under the Data Protection Acts in 2014, a further FOI request in 2017, and the requests in 2018 that are the subject of this review. It stated that the requests were refused in all cases on the ground that the records sought had previously been released. It stated that in her request made in March 2018, the applicant made specific reference to records from the relevant time period and quoted from the specific records with their dates. It stated that this suggests the records are available to her. It also noted that in her application for internal review, the applicant referred to the fact that she was "in disarray then" and that the documents were not available to her. It argued that this does not mean that the records are not available to her now but rather suggests that her personal records may be disorganised.

The HSE further added that the introduction of section 15(1)(i) in the FOI Act 2014 attempts to reflect the fact that a public body should not have to deal with repeated requests for the same records. It argued that it is very easy for requesters to simply state that the records released are not available to them and that the Act does not place any burden of proof on them to justify their assertions.
In my view, the HSE has identified valid concerns as to the practical difficulty of relying on section 15(1)(i) to refuse a request. I accept that the section reflects the fact that public bodies should not have to deal with repeated requests for the same records where they are available to the requester. I would also expect requesters to bear some responsibility for the safe-keeping of records released on foot of a request to avoid having to make a repeat request for the same records. This is particularly so where the records are of a sensitive and inherently private nature, as is the case here.
Nevertheless, the Act provides no guidance as to how a public body should determine if previously released records are available to the requester. It seems to me that where a public body has previously released the records sought to the requester, it can reasonably assume that they are available to the requester. In my view, a mere assertion by a requester that the records are not available to him/her will not suffice for a refusal under section 15(1)(i) to fail. However, where a requester provides an explanation as to why the records sought are not available to him/her, I would expect the body to have regard to that explanation. I would also expect the body to satisfy this Office that a refusal under section 15(1)(i) remains appropriate notwithstanding that explanation, if that is its decision. 

It does not appear to be in dispute that the records sought by the applicant in the first of her two requests that are the subject of this review were previously released to her, at least in part. However, it is not at all clear that the applicant accepts that all of the records captured by her second request were previously released, although I note the HSE's position that all relevant policy records sought were released on foot of the request and that all other records were captured by the original request in 2011.

In her application for review to this Office, the applicant stated that the records previously released to her in 2011 are not available to her in full. She stated that 2011 was a dreadful time for her as she had moved home and began a process of adaptation of her home which was gutted for extensive work to accommodate a person with a disability. She stated that some files became displaced, dislodged or tossed about. She stated that in the building disarray the files became disjointed, displaced and some lost. She also stated that she found "redactions on most files all over the place".
It seems to me that at least some of the records released in 2011 remain available to the applicant. Indeed, she quoted from these records in her submissions to this Office. However, I have no reason to doubt her assertion that some of those records were lost in the course of the extensive building work at her home. It is also important to note that many of the records released in 2011 were redacted. Section 15(1)(i) is confined to circumstances where the records sought have already been released and does not extend to records that were considered for release but not released. If the records sought were not released, then section 15(1)(i) cannot, in my view, apply.

It is noteworthy that the applicant did not apply for a review of the decision of the HSE to redact certain records when it processed her request in 2011. Had she done so and had the circumstances remained unchanged, it would have been open to this Office to refuse to accept a second application on the ground that the matter to which the application related was the subject of an earlier review. However, a similar such option is not available to public bodies, although there are other options for administratively refusing repeat requests. For example, depending on the circumstances it might be open to a public body to refuse repeated requests for the same records under section 15(1)(g) on the ground that the repeat requests are frivolous or vexatious. I should add, however, that I do not believe this to be such a case.

In all of the circumstances, I find that not all of the records sought were already released and are available to the applicant. I find, therefore, that the HSE has not justified its refusal of the request under section 15(1)(i). However, given that the records at issue have not been examined by this Office and given the HSE's claim that certain information contained in the records relates to third parties, I do not consider it appropriate to simply direct the release of the records sought. Instead, I find that the most appropriate course of action is to annul the HSE-™s decisions and to direct it to conduct a new decision-making process on the requests. The normal rights of internal review and appeal to this Office will apply to the new decisions. 

For the benefit of both parties, I would make the following additional comments. I understand that many of the redactions made to the records in 2011 were as a result of the records containing personal information relating to the applicant's sister. It is important to note that the exemption that serves to protect such third party personal information does not apply where the third party to whom the information relates consents to its disclosure to the requester. If such consent was forthcoming in this case, the level of redactions required may be significantly reduced.

Secondly, the applicant appears to be of the view that not all relevant records that are now sought were included in the records released in 2011. If the applicant has such concerns, it would be to the benefit of both parties for her to specify, in advance, what additional records she believes to exist. As such, I recommend that the HSE liaise with the applicant on this point before considering the requests afresh.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in this case. I direct the HSE to conduct a new decision-making process on the applicant-™s FOI requests. 

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