Whether the HSE was justified in its decision to refuse the applicant-™s request for access to a typed copy of notes taken by interview board members under section 15(1)(a) of the FOI Act on the ground that the records do not exist in the format sought

14 January 2019 

Background

The applicant was unsuccessful in her application for a particular post within the HSE. On 13 June 2018 she sent an email to the HSE seeking access to certain records relating to her interview and she enclosed a completed "Request for Access to Records" form which the HSE makes available for the purpose of facilitating FOI requests. She stated in her email that she was seeking access to a typed copy of the Interview Marking Sheet that had previously been released to her with the notification of the outcome of her application and to the notes taken during her interview by the three members of the interview panel, both in their original hand-written format and in typed format. In the form itself, she described the records sought as a typed transcript of the Marking Sheet and hand-written and typed copies of "the original comment and marking sheets from each member of the interview panel".

On 9 July 2018, the HSE refused the request under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist. It stated that the board members do not complete individual marking sheets, that only one sheet per candidate is completed, and that a typed copy of that sheet does not exist. On 17 July 2019 the applicant sought an internal review of that decision, in which she noted that all three members of the interview panel had taken notes during her interview. She clarified that she was not seeking access to individual marking sheets but rather was seeking copies of the notes taken by the board members during the interview. She also explained that she was seeking a typed copy of the Marking Sheet on the ground that the copy she received was illegible. 

The HSE failed to issue an internal review decision within the time limits set out by the FOI Act and on 17 September 2019 the applicant sought a review by this Office of the deemed refusal of her request for internal review. The HSE subsequently issued its internal review decision on 19 September 2019 in which it suggested that the applicant had been provided with the handwritten copies of the "Interview note taking sheets" and it affirmed the original decision to refuse access to any additional records.

During the course of the review, the HSE provided the applicant with a typed copy of the Interview Marking Sheet and copies of the hand-written notes completed by the individual board members. It maintained its position that typed copies of the hand-written notes do not exist. The applicant subsequently confirmed with this Office that the only outstanding issue for review was the HSE-™s refusal to provide a transcript of the interview notes. 

I have decided to conclude this review by way of a formal binding decision. In conducting the review I have had regard to the correspondence between the applicant and the HSE as described above 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 subject records provided to this Office by the HSE for the purposes of this review.

Scope of Review

As I have outlined above, the only issue remaining to be considered is whether the HSE was justified in refusing to provide the applicant with typed copies of the notes prepared by the three interview board members. During the course of the review, the HSE argued that the notes in question did not form part of the applicant's request. While it acknowledged that the applicant submitted an email along with the completed "Request for Access to Records" form which it described as the "pro-forma", it stated that the request was processed as set out in the pro-forma. It added that the acknowledgement of the request that issued confirmed the decision maker's understanding of the scope of the request and that the applicant did not raise any concerns at that stage. It argued that the matter should have been raised by the applicant at that stage and that she was not entitled to broaden the scope of her request at internal review stage to include the interview notes.

While I can understand why the HSE would make available a specific form for requesters to facilitate requests for records, there is nothing in the Act that requires requesters to use such forms. The Act simply requires that a request be made in writing to the body stating that the request is made under the Act and it must contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps. The Act also requires that if the requester requires access to be given in a particular form or manner, the request must specify the form of access sought. It is also noteworthy that under section 11(2), public bodies are required to give reasonable assistance to a person who is seeking a record under the Act in relation to the making of the FOI request for access. 

In the circumstances, it seems to me that the HSE was not entitled to simply ignore the contents of the applicant's email wherein she described the records sought. Furthermore, I do not accept that the applicant should have sought to clarify the scope of her request following receipt of the acknowledgement of her request. It seems to me that she had been given no reason to believe that any such clarification was necessary. Furthermore, if there was any uncertainty or doubt about the scope of the request, I would expect that the HSE would have sought to clarify the matter, particularly given the wording of the applicant's email, wherein she made it clear that she was seeking access to the notes taken during her interview by the three board members. 

In the circumstances, I am satisfied that the scope of the applicant's request did, indeed, extend to copies of the interview notes taken by the board members. The current position is that the HSE has provided the applicant with copies of the hand-written notes but has refused to provide typed versions of the notes. Accordingly, this review is concerned solely with whether the HSE was justified in refusing to provide typed versions of the notes under section 15(1)(a) on the ground that no such records exist.
 

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the record sought does not exist. The HSE's position is that the only versions of the interview notes sought that do exist have already been released to the applicant and that no typed copies of the notes exist. While the Act does not generally require public bodies to create records if none exist, it specifically provides for the release of records that do exist in formats other than the format in which the records are held (section 17 refers). The question to be considered in this case, therefore, is not whether the records exist but whether the HSE is required to provide access to the records in the format sought.

As I have explained above, if a person requires access to a record to be given in a particular form or manner (being a form or manner referred to in section 17), the request must specify the form or manner of access required (section 12(1)(c) refers). Under section 13(1) where a body decides to grant a request, it must also determine the form and manner in which the right of access will be exercised.

Under section 17(2), where a body decides to grant a request that is for access in a particular form or manner, such access must be given in that form or manner unless the body is satisfied that, among other things, access in another form (as set out in subsection (1)) would be significantly more efficient. 

The HSE's position is that it is significantly more efficient for it to provide the records in the form that they are held. It argued that in order to make a transcript of the interviewer notes, the interview board members would need to be reconvened to undertake the transcription. It argued that this would require diverting two senior staff members from their substantive job roles to review notes, paying the external chairperson for any time and expenses incurred to transcribe his/her notes and providing administrative supports to type the transcription into the form that has been requested. The HSE further argued that it is increasingly difficult to secure suitably qualified individuals to undertake to sit on interview boards and that the potential of adding a further administrative burden to interview board members will make the process increasingly unattractive to potential board members.

For the benefit of the applicant, I should say at this stage that section 17 does not require public bodies to release copies of records in multiple formats. Instead, it simply requires them to release the records sought in the format requested unless one or more of the circumstances set out in section 17(2) arise, e.g. where the body is satisfied that access in another form would be significantly more efficient. Indeed, I note that under section 15(1)(i) a public body may refuse to grant a request where the request is for records already released to the requester.

Nevertheless, the applicant's argument in this case is that she requires access to typed copies of the notes of the interview board members as the copies of the hand-written notes are illegible. As such, this raises the question as to whether it can reasonably be argued that she has been granted access to the records. It is important to recall that the purpose of the FOI Act, as set out in its long title, is to enable members of the public to obtain access to information in the possession of public bodies, notwithstanding that the mechanism for doing so is by way of granting access to the records that contain such information. The expectation is that the release of a record will involve the release of the information contained in that record. Indeed, I note that under section 17(1)(f), where information in a record is in shorthand or other code, a public body may give access to the record by providing the requester with the information unencoded in written form or other such form as may be determined. 

I should also explain that this Office has previously expressed the view that although the Act does not expressly identify to which of the parties (requester or public body) the test of "significantly more efficient" is meant to apply, it is appropriate to have regard to the requirements of both parties. Granting access to an illegible record simply cannot be considered as more efficient, especially from the requester's viewpoint. Having examined the records at issue, I accept that some of the hand-written information contained in each of the records is illegible. I am also of the view that the HSE's argument as to why it is significantly more efficient (in so far as that test applies to the HSE) to provide copies of the notes sought in this case in their original format is somewhat overstated. While I accept that a correct transcription of the notes may well require the input of the interview board members, I do not accept that this would necessarily require the board to be reconvened. Furthermore, the amount of information requiring transcription is not significant, in my view.

It seems to me that the HSE's primary concern about transcribing the records at issue in this case is the possibility that a precedent might be set for all future interviews which, in turn, might affect its ability to secure suitable board members. I do not accept that any such precedent would necessarily be set. Each review is considered on its merits and is based on the particular circumstances arising. A key issue in this case is that the records sought are, in part, illegible, to the extent that granting access to the records in their original format cannot, in my view, reasonably be regarded as the applicant having been given access to the information contained in those records.

For the sake of completeness, I should add that under section 17(2)(b)(iv), a body is not required to grant a request in the particular manner requested if it is satisfied that granting access in that manner would prejudice, impair or damage any interest protected by the various exemptions in Part 4 of the Act. The HSE has not sought to rely on section 17(2)(b)(iv) in this case. However, even if it had, it seems to me that its argument would be based on its argument that release in this case would set a precedent for future interviews, which is an argument that I do not accept.

In conclusion, therefore, I find that the HSE was not justified in refusing to provide typed versions of the interview notes of the board members under section 15(1)(a) on the ground that no such records exist.

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 records at issue in the format sought. I direct it to provide the applicant with a transcript of her interview notes in accordance with the provisions of section 17 of the FOI Act.

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