Whether the HSE was justified in its decision to refuse access, under section 37 of the FOI Act, to details of the qualifications of certain HSE staff members and to refuse access to records containing details of calls made on an on-call rota in 2012 under section 15 (1)(a) on the ground that the records in question could not be found

17 December 2018 

Background

On 29 September 2017 the applicant made a two part request to the HSE. At Part 1 he requested all qualification details of staff in a named division of a specific Hospital since 2000. At Part 2 he requested records of all calls made on a specific on-call rota for the previous six years detailing the time, date, reason for the call out and who signed off same. 

On 14 November 2017, the HSE issued a decision in which it part granted the request. It refused access to records relating to Part 1 of the request under section 37 (1) of the FOI Act on the ground that they contain personal information relating to individuals other than the applicant. However, it provided a copy of the job specifications for the roles and stated that each of its staff had the required qualifications for their relevant role. In response to Part 2, it released a copy of the on-call overtime sheets for 2011 to date (except for 2012 which could not be located), with the redaction of the payroll number for each staff member.

The applicant sought an internal review of that decision, following which The HSE affirmed its original decision. On 12 July 2018 the applicant sought a review by this Office of that decision.

During the course of the review, the HSE provided this Office with the details of the types of records that would be captured by the applicant's FOI request and the searches carried out to locate all relevant records. On 17 October 2018, Ms Hannon of this Office provided the applicant with details of the searches undertaken and the HSE's explanation as to why it cannot locate the 2012 sheets. She informed the applicant of her view that the HSE was justified in refusing access to the records concerned in Part 1 of his request as it was personal information relating to third parties. She also invited the applicant to make a further submission on the matter. As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision. 

In conducting the review I have had regard to correspondence between the applicant and the HSE and to the correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the sample of records provided to this Office by the HSE for the purposes of this review.

Scope of the Review

During the course of the review, the applicant confirmed to this Office that he is not seeking access to the redacted payroll numbers on the overtime sheets. He stated that his concern was that the 2012 overtime sheets were not located. 

This review is concerned solely with whether the HSE was justified in its decision to refuse access to the qualification details of staff in a named division of a specific Hospital since 2000 under section 37(1) of the FOI Act and to refuse access to further relevant records of calls made on a specific on-call rota in 2012 under section 15 (1)(a) on the ground that they cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

 
Analysis and Findings

Part 1

Section 37(1) of the FOI Act provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. 

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including information relating to the educational history, employment, and employment history of the individual, and information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally. 

The applicant is seeking access to details of qualifications held by certain staff members. I am satisfied that such information is personal information relating to the individuals concerned and that it is not captured by the exclusion at Paragraph I. I find, therefore, that section 37(1) applies.

The effect of section 37 (1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below. 

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the granting of the information would be to the benefit of the person to whom the information relates.

No argument has been made that the release of the record would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. 

The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act, which makes it clear that the release of records under FOI must be consistent with the right to privacy. It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

It seems to me that the public interest in the promotion of transparency and accountability has been served to some extent by availability of the job specifications for the roles at issue and by the HSE's confirmation that each of its staff had the required qualifications for their relevant role. The question I must consider is whether the public interest in further enhancing the transparency and accountability of the HSE by the release of the individual qualifications is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view, it is not. In holding this view, I have had regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. I find, therefore, that section 37(5)(a) does not apply in the circumstances and that the HSE was justified in refusing access to the records in question under section 37(1) of the FOI Act. 

Part 2

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. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. 

During the course of the review the applicant informed this Office that he was satisfied with the nature of the records released for the various years but that he was not satisfied with the HSE's failure to locate similar records for 2012. As I have outlined above, Ms Hannon of this Office provided the applicant with details of the searches undertaken for those records. 

In summary, the HSE stated that at the time of the original request a full search of the payroll office was undertaken and relevant staff consulted and that records for all relevant years apart from 2012 were found. It stated that all records were relocated from the payroll office to a central storage area following a fire to allow for refurbishment of the office and that several searches of that area were undertaken but the records for 2012 could not be found. It added that the transfer and re-filing of records would have identified any misfiling and that the 2012 records were not located during the relocation of files to the central storage area.

It is unfortunate that the HSE cannot locate the records sought. However, it is important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

Having regard to the searches undertaken by the HSE in this case, I find that it has taken all reasonable steps to ascertain the whereabouts of the 2012 records and that it was therefore justified in refusing the applicant's request for those records under section 15(1)(a).

As a staff member of the HSE, I understand the applicant is aware of the existence of other records related to calls made on the on-call rota, such as the requisitions for repairs. While such records do not contain all of the information sought by the applicant, it is open to him to make a fresh request for such records from 2012 if he considers they might serve his purposes.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case. 

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