Whether the HSE was justified in its decision to refuse access to further relevant records relating to the applicant under section 15(1)(a) of the FOI Act on the grounds that the records sought do not exist or cannot be found
3 May 2019
Background
It appears that this review has its background in a dispute involving the applicant and the HSE as her employer. On 23 May 2018 the applicant submitted a request to the HSE for all documentation held by two named staff members concerning her, to include emails sent to and received by those staff members, records initiated by the staff members that went to third parties, and records initiated by third parties that went to the staff members. For ease of reference, I will refer to the two staff members as Ms. A and Mr. B.
Having regard to the areas in which Ms. A and Mr. B worked, the HSE decided to split the request and to issue two separate decisions in relation to the records held by each of the staff members. On 6 June 2018, the Human Resources section of the HSE South issued a decision in which it granted the applicant's request for records held by Ms. A. On 13 July 2018, the applicant sought an internal review of that decision. On 31 July 2018, the HSE South issued its internal review decision in which it affirmed its original decision.
On 5 July 2018, the National Ambulance Service (NAS) issued a second decision in which it stated it had been requested by the HSE Dublin Mid Leinster to process the request. It stated it had received information from Mr. B's Office in order to make its decision, which was to grant the request. On 17 July 2018, the applicant sought an internal review of that decision, wherein she stated that the request had nothing to do with the NAS. On 13 September 2018, the HSE Dublin Mid Leinster issued a decision in which it affirmed its original decision.
On 8 January 2019 the applicant sought a review by this Office of the HSE's decisions. While she acknowledged that she had received records totalling 469 pages, she argued that certain records had not been released to her, including a report and correspondence relating to Workplace Relations Commission (WRC) conciliation.
In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.
Scope of the Review
As the HSE had purported to grant the request in full, this review is concerned solely with whether HSE was justified in refusing to grant access to additional records coming within the scope of the applicant's request on the grounds that no further relevant records exist or can be found.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record sought 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.
In submissions to this Office, the applicant stated that the HSE ought to hold further records falling within the scope of her request. She particularly highlighted the the absence of WRC records. Ms Hannon of this Office put this to both areas of the HSE and sought answers to detailed queries about searches undertaken. Both areas provided submissions of the searches it had undertaken to locate relevant records.
The HSE South submitted all relevant records had been released to the applicant. In relation to the WRC records, it stated that the applicant was not an employee of the HSE South and therefore any records held in relation to her would not be held there. It stated it had undertaken enquiries and that the WRC records may exist but would more than likely be located in the National HR/Corporate Employee Relations area.
The NAS (on behalf of the HSE Dublin Mid Leinster) provided submissions stating it had undertaken searches and no further records could be located. It stated it had searched records relating to Mr. B and supplied all relevant records. It said the request was processed by the NAS given the particular employment history of the applicant and Mr. B. It said it assumed that all records provided by Mr. B's office would encompass the entire scope of that part of the request and that any other relevant records would be captured by the HSE South. It also stated that it had consulted the applicant at internal review stage and asked if there were any specific records missing in the original decision schedule, which could be located as part of the internal review process. It said the applicant did not provide any specific information with regard to records which she felt had not been provided to her.
A considerable amount of confusion has arisen as to the extent of the records coming within the scope of the request in this case for a number of reasons. Firstly, I have commented previously on the difficulties that arise as a result of the HSE splitting requests due to the diverse range of Offies and functions for which it is responsible. While it might make sense to the HSE to do so, it is unreasonable to expect applicants to be in a position to make informed judgements as to what parts of the HSE might hold relevant records and whether all relevant records have been considered for release. The HSE is a single entity for the purposes of the FOI Act and it would be preferable for the HSE to co-ordinate requests so that requesters can engage with single points of contact.
However, the vague wording of the applicant's request has also complicated the matter. Taken literally, the request was for records held by Mr. A and Ms. B concerning her. As such, it could be argued that all the HSE had to do to address the request was to consider records held by those individuals. However, she went on to suggest that the request for such documentation should extend to records created by the two individuals but sent to third parties. Unless the individuals concerned retained copies of such records, I fail to see how they could reasonably be described as being held by the individuals in question.
Nevertheless, the HSE appears to accept that certain records concerning the applicant relating to WRC conciliation may exist and be held elsewhere within the HSE. Given the information before me, I am simply not in a position to state whether any or all such records are captured by the scope of the applicant's request. As such, I cannot find that the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records.
It seem to me that the most appropriate course of action to take is to annul the decisions of the HSE and to direct it to consider the applicant's request afresh. In doing so, however, I would draw the attention of both the applicant and the HSE to a number of relevant provisions of the Act
Firstly, section 12(1) provides that a person seeking access to records must provide sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps. If there are specific records relating to a specific matter that the applicant wishes to access, she should say so.
Secondly, section 12(6) provides that where a person makes a request for access to records other than under and in accordance with the Act, the public body must assist, or offer to assist the person in the preparation of such a request.
In this case, it seems to me that as a first step in processing the request afresh, it would be beneficial for both parties to agree, in the first instance, on the precise nature of the records sought apart from those already released. The HSE should also bear in mind that it alone is responsible for ensuring that any subsequent searches for relevant records extend to all parts of the HSE that might hold relevant records. It cannot be the responsibility of the applicant to identify all such locations.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision to refuse the applicant's request for further records coming within the scope of the applicant's request and I direct the HSE to undertake a fresh decision-making process on the 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
