Whether the PCRS was justified in refusing to release records concerning audits and inspections of a specified pharmacy group and records relating to phased dispensing under section 15(1)(c) of the FOI Act on the ground that granting the request would cause a substantial and unreasonable interference with the work of the PCRS

01/03/2019

Background

This review has its background in a dispute between a particular pharmacy group ("the Pharmacy Group") and the HSE relating to phased dispensing. On 20 July 2017, the applicant submitted a four part request to the PCRS on behalf of the Pharmacy Group for (1) all records relating to audits and inspections of any pharmacy within the Pharmacy Group , (2) all reports of audits and inspections of any of the pharmacies, (3) all records relating to phased dispensing, and (4) all communications between the HSE and the Department of Health relating to phased dispensing.

On 3 August 2017 the PCRS sought clarification as to the specific nature of the records sought. It noted that three of the four categories of records sought were extremely broad, given that they captured all records relating to the particular topic. It sought clarification of the specific records sought for those three categories. It also informed the applicant that it was reserving the right to refuse the request under section 15(1)(c) and was seeking to determine whether it was possible to refine the request so that it was not liable to be refused under section 15(1)(c).

In his response of 9 August 2017, the applicant asked for the request for records under categories 1 and 2 to be treated as one request and for the records under categories 3 and 4 to be treated as a second separate request. He provided some clarification as to the types of records sought under the various categories. Under categories 1 and 2, he explained that he was seeking access to the reports and any correspondence, comments or observations relating to the audits and inspections, including drafts and unissued records.

Under category 3, he stated that he was seeking all documents regarding the rules relating to phased dispensing and claiming for payment by pharmacists. Under category 4, he stated that he was seeking all communications relating to the rules for phased dispensing and claiming for payment by pharmacists.

On 24 August 2017 the PCRS maintained that it was entitled to treat the entire request as a single request. It stated that the clarified requests for records under categories 1 , 3 and 4 remained extremely broad, by virtue of the use of the phrase "relating to ". It offered the applicant one further opportunity to define more precisely the records sought. On 27 September 2017 rephrased the wording of his request under categories 1 and 4, and restated his request in the following terms:

"...all reports, findings, conclusions, recommendations and documents of a similar nature arising from audits or inspections or any pharmacy in the ... Pharmacy Group including any drafts of these documents"
"All inspection and audit reports arising from inspections and audits of any pharmacy in the ... Pharmacy Group"
"All internal memoranda, circulars and any other documents, of the Health Service Executive and the Department of Health, relating to Phased Dispensing by pharmacists and the rules relating to claiming for payment for Phased Dispensing by pharmacists. This request includes any drafts of these documents"
All correspondence and communications between the Health Service Executive and the Department of Health concerning the rules for phased dispensing by pharmacists and the rules concerning the claiming for payment by pharmacists for phased dispensing including any drafts of these documents."

On 13 October 2017 the PCRS informed the applicant that it considered it had offered sufficient assistance to allow for the submission of an amended request and that it intended to proceed to make a decision on the request. It issued its decision on 24 November 2017, in which it refused the request under sections 29(1), 30(1)(a), 31(1)(a) and 31(1)(b) of the FOI Act. It also stated that without prejudice to the application of the exemptions cited, it had also decided to refuse the request under section 15(1)(c) on the ground that granting the request would require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with and disruption of work in particular functional areas of the HSE.

The applicant sought an internal review of that decision on 22 December 2017. Following internal review, the PCRS affirmed its original decision on 18 January 2018 to refuse the request based on the grounds set out in that decision. It also cited section 15(1)(i) as an additional ground for refusing access to certain records captured by category 3. On 12 June 2018 the applicant sought a review by this Office of that decision.

I have decided to conclude this review by way of a formal binding decision. In carrying out this review, I have had regard to the correspondence between the PCRS and the applicant as set out above and to the correspondence between this Office and both the PCRS and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the PCRS was justified in refusing the applicant's request for records relating to audits and inspections of the Pharmacy Group and records relating to phased dispensing, as described in his letter of 27 September 2017, under sections 15(1)(c), 15(1)(i), 29(1), 30(1)(a), 31(1)(a) and 31(1)(b) of the FOI Act. 

Analysis and Findings

While the PCRS refused the request under sections 15(1)(i), 29(1), 30(1)(a), 31(1)(a) and 31(1)(b) of the FOI Act, it is clear to me that the PCRS did not retrieve or examine any relevant records coming within the scope of the request. I say this because at both original decision and internal review decision stages, the decision makers sought to rely on section 15(1)(c) to refuse the request in its entirety on the ground that granting the request would, by reason of the number and nature of the records concerned, require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with and disruption of work of the HSE, including disruption of work in particular functional areas of the HSE, being, primarily, the PCRS and the Pharmacy Function Team. Indeed, in a letter of 4 July 2018 to this Office, the PCRS stated that the application of the exemptions (apart from section 15), were based on a review of the categories of documents sought and not a review of the specific records. It stated that it did not undertake the substantial administrative task of gathering the records falling within the scope of the request.

It is important to note that under section 22(12)(b) of the Act, a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the PCRS of satisfying this Office that its decision to refuse to release the records sought was justified. In circumstances where this Office has no knowledge of the nature or contents of the records coming within the scope of the request, it is simply not possible for me to determine if the refusal of the request under any or all of sections 15(1)(i), 29(1), 30(1)(a), 31(1)(a) and 31(1)(b) was justified. In the circumstances, I find that the PCRS has not justified its decision to refuse the request under any of these sections.

Section 15(1)(c)

The applicability of section 15(1)(c) to the request remains to be considered. That section provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c). 

On 1 August 2018, the PCRS made a submission in support of its refusal of the request under section 15(1)(c). I note that during the course of the review, Ms Hannon of this Office provided the applicant's solicitors with details of that submission and afforded them an opportunity to make an additional submission, which they did. Therefore, while I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision. I also note that the applicant's solicitors took issue with the fact that they had not been provided with a copy of the PCRS submission before it made its additional submission. As Ms Hannon has previously explained to the applicant's solicitors, reviews undertaken by this Office under the Act are inquisitorial, as opposed to adversarial, in nature. She explained that while it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. She expressed her satisfaction that all material points raised by the PCRS in this case had been provided. 

She drew attention to the comments of Quirke J in The National Maternity Hospital v the Information Commissioner [2007] 3 IR 643, wherein he stated as follows:

"I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures."

It is also important to note that under section 25(3) of the Act, the Commissioner is required to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a records, would cause the record to be an exempt record.

Having examined the PCRS submission and Ms Hannon's correspondence with the applicant's solicitors, I am satisfied that they have been afforded fair and reasonable opportunity to make informed submissions as to the applicability of section 15(1)(c) to the request at issue. 

In its submission, the PCRS stated that the request is focused on records held by a specific section/unit of the PCRS, namely the Pharmacy Function Unit, which has 14 staff members and has a very heavy workload, overseeing the administration of pharmacy services. It stated that collating the records for categories 1 and 2 relating to audits on the Pharmacy Group would be a considerable exercise given the quantity of inspections conducted on the significant number of pharmacies within the Pharmacy Group. It stated that it would require the retrieval/examination of records not only at the PCRS but from local HSE pharmacists. It estimated this would take four weeks of dedicated work for HSE pharmacists in the relevant areas and two weeks for HSE administrative staff to review records of meetings etc arising from the inspections. It said records relating to these inspections/audits were held both electronically and in hard copy by the PCRS and in some occasions, due to IT legacy issues, would require input from IT to attempt to locate relevant archived material.  It said any IT enabled search would bring back copious amounts of records that are not part of this FOI request which would require careful review to ensure that only records relating to the request were disclosed. 

The PCRS noted that category 3 is not limited in time and seeks records spanning a 19 year period and would require the HSE/PCRS to search for relevant records throughout that time period. It said due to the wording of the request, a search would be required of the email accounts of key members of PCRS staff. It considered that to ensure all relevant records were retrieved, at minimum this would require the search of at least 8 heads of unit with key responsibilities. It estimated that category 3 alone would take approximately 1600 hours (200 hours per head of unit).

In respect of category 4, the PCRS said that the lengthy time frame of the request was a cause for concern in light of the number of records and workload involved in searching. Furthermore, both electronic and manual searches would be necessary as records were manual pre 2000 and as such a search of archive storage facilities would be required to determine if relevant records from that period are still retained. 

In submissions to this Office, prepared by his solicitors, the applicant stated that each category requested is a separate and discrete category of documents and each category should be granted or refused on the basis of its individual scope. He stated that a determination that a particular category (or part thereof) is voluminous should have no bearing on the determination in respect of another category. The applicant further submitted that as each individual pharmacy would be entitled to the records contained in categories 1-4, an "omnibus request" presents significant economies of scale and efficiencies for both the PCRS and this Office.  

The applicant's original request on 20 July 2017 was a single request which contained all four categories and the PCRS has processed it as such. The question of whether an individual pharmacy within the Pharmacy Group would be entitled to the records sought is not before me. I find that the PCRS was entitled to treat the entire request as one single request. For the sake of clarity, given the wording of the applicant's request, I would still consider that each individual category is voluminous for reasons I will set out below. 

The applicant stated that the PCRS has not compiled a schedule of the records covered by his request. The applicant submitted that in the absence of a schedule, the PCRS cannot discharge the presumption that a decision to refuse access to records was justified pursuant to section 22(12) of the FOI Act. He states that as it does not appear the PCRS know what records are covered by his request then it can have no means of demonstrating that refusal of such records is justified. He further submitted that the lack of a schedule may be a tactical decision of the PCRS to delay proceedings as this Office would be unable to direct the release of some or all of the records in the absence of a schedule and would be required to order the PCRS to start the process again. 

Had this review been concerned with the refusal of PCRS to refuse access to relevant records under sections 15(1)(i), 29(1), 30(1)(a), 31(1)(a) and 31(1)(b) of the FOI Act it would be the case that a schedule of records would have been necessary to determine which records were being refused under which exemption. However, it appears to me, given the explanation of the nature of the records offered by the PCRS, that providing a schedule would form part of the administrative burden the PCRS wishes to avoid by invoking section 15 (1)(c) in the first place. That is to say, in order to compile a schedule, the PCRS would have had to compile all the records sought by the applicant which is precisely what it is claiming would cause a substantial and unreasonable interference with the work of the PCRS.

The applicant stated no justification has been provided as to why other statutory obligations of the PCRS take precedence over it's FOI obligations. While the FOI Act imposes statutory obligations on public bodies, compliance with these obligations is not intended to be unreasonably burdensome; for this reason, the Oireachtas made provision for administrative grounds for refusal of requests, such as section 15(1)(c). 

The applicant submitted that the HSE has a large number of staff who could undertake this request. However, this fails to recognise that this request could only be meaningfully undertaken by the relevant team within the PCRS, the Pharmacy Function Team with a team of 14 people. Section 15 (1)(c) is an express acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on often limited resources. It is an administrative provision that recognises the burden that certain FOI requests can place on FOI bodies.  

In relation to categories 1 and 2, the applicant submitted that the decision of the PCRS was based on the inefficiency and disparate nature of the PCRS record procedure. He stated that what he was seeking in these categories was records of the outcome of completed audits and inspections in respect of 34 identified pharmacies. He said the only objection raised in respect of some of these categories is that the records are not held in a centralised location, collation of same would therefore be burdensome and that collation would be hampered by the retirement of certain unidentified personnel. He said the retirement of certain personnel cannot impinge on his request that relates to records held by the PCRS, not those personnel. 

I disagree with the applicant's contention that the refusal of the PCRS is predicated upon its poor record management practices. The records sought by the applicant in categories 1 and 2 relate to audits and inspections of individual pharmacies requiring the PCRS to retrieve and examine records from local HSE pharmacists. It is entirely reasonable to expect that these records by their nature would not be held in a centralised location 

In his submissions the applicant stated that he is seeking records of the outcome of the HSE's own audits and inspections in a specified number of pharmacies and as such the request is not voluminous. I note the applicant's point that there are 34 identified pharmacies and the audits and inspections were undertaken by the HSE. However, given the potential quantity of audits and inspections and the fact that there a significant number of pharmacies, I am satisfied that there may be a significant number of potentially relevant records held in the PCRS and local pharmacies. I am satisfied, given the wording of the applicant's request, that  it was reasonable of the PCRS to interpret the applicant's request as a request for all records relating to the audits and inspections, not just records of the outcome of the audits and inspections. The phrase "relating to" is of particular concern and has the potential to give rise to a potentially large volume of relevant records.  
 
In relation to category 3, the applicant submitted that what he was seeking was internal documentation of the HSE's own scheme. He stated that the PCRS have vastly overestimated the retrieval time of 1600 hours for the records sought in order to refuse his request and have provided no elaboration as to how this figure was arrived at. However, as explained above and outlined to the applicant previously, the PCRS considered that to ensure all relevant records were retrieved, at minimum this would require the search of the computer and internal files of at least 8 heads of unit with key responsibilities and estimated it would take 200 hours per head of unit.

I consider that the estimation provided by the PCRS of 200 hours per head of unit may be an overestimation. However, given the wording of category 3, I accept that the search and review of records relating to a scheme that has been in place for over 19 years would be extensive. 

Finally, in category 4 the applicant sought all communications and correspondence between the HSE and the Department of Health concerning the rules for phased dispensing and the rules for payment for phased dispensing. Again, this category is not limited in time and would involve comprehensive electronic and manual searches given the nature of the request. 

In my view, both category 3 or 4 individually would involve the search, retrieval and review of a considerable volume of records and could stand to be refused under section 15 (1)(c).  

In any event, as I have outlined above, I am satisfied that the PCRS was entitled to treat the entire request as one single request. Indeed, it seems to me that any effort to compel the PCRS to treat the request as a number of individual stand alone requests would simply represent an attempt to circumvent the ability of the PCRS to rely upon the provisions of section 15(1)(c) for refusing the request. It is also worth noting that under section 15(1)(g), a public body may refuse a request where the request forms part of a pattern of manifestly unreasonable requests from the same requester.

In the circumstances, it seems to me that the diversion of staff within the Pharmacy Function Team for the search and examination process described above could have a considerable impact on the usual work of that team in particular. Having regard to the PCRS's explanation of the volume of records that would have to be examined to process the applicant's request I accept the PCRS contention that granting the request would cause a substantial and unreasonable interference with, and disruption of, work in the PCRS, and more particularly within the functional area of the Pharmacy Function Unit. I find, therefore, that the PCRS was justified in deciding that section 15 (1)(c) should apply. 

Reasonable Assistance

However, that is not the end of the matter. Section 15(4) provides that an FOI  body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c). As can be seen from the background section of this decision as set out above, there were clearly a number of engagements between the parties in an effort to come up with a refined FOI request that would be acceptable to both parties. 

While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

I might add that while there is an onus on FOI bodies to assist, or at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type and nature of records held. Nevertheless, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. In such circumstances, the difficulty with requesters making broad or non-specific requests, such as a request for any and all records on a particular matter, becomes apparent. 

On balance, however, having regard to the exchanges of correspondence between the parties, I am prepared to accept that the PCRS did, indeed, offer reasonable assistance to the applicant, such that it could be deemed to have complied with the requirements of section 15(4).

In conclusion, therefore, I find that the PCRS was justified in refusing the applicant's request for records relating to audits and inspections and phased dispensing under section 15(1)(c) of the FOI Act on the ground that granting the request would cause a substantial and unreasonable interference with the work of the PCRS.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the PCRS 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