Whether the HSE was justified in its decision to refuse the applicant’s request for access to the handwritten minutes of meetings taken by a named individual on two specified dates under section 15(1)(a) of the FOI Act on the ground that the records sought no longer exist

1 October 2019

Background

On 18 March 2019, the applicant submitted a request to the HSE for access to the original handwritten minutes of meetings taken by a named individual on two specified dates. As the HSE failed to issue a decision on the request within the required time-frame, the applicant sought an internal review on the basis of a deemed refusal of her request.

In a decision dated 2 May 2019, the HSE refused access to the handwritten minutes sought under section 15(1)(a) on the ground that they did not exist, and to the typed version of those minutes under section 15(1)(i) on the ground that they had previously been released to the applicant. On 12 May 2019, the applicant sought of a review by this Office of the HSE’s decision to refuse access to the handwritten minutes.

During the course of the review, the HSE provided this Office with details of the searches it carried out in an effort to locate the relevant records and with an explanation as to why the records sought no longer exist. Ms Swanwick of this Office provided the applicant with those details and informed her of her view that the HSE was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review of the HSE’s decision. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.

Scope of Review

The scope of this review is concerned solely with whether the HSE was justified in refusing the applicant’s request for access to the handwritten minutes of meetings taken by a named individual on two specified dates under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submission to this Office, the HSE stated that the meetings in question took place as part of an investigation following a workplace allegation. It stated that the relevant manager took handwritten notes of the meetings that were subsequently typed and that the typed records are retained in the relevant file in the manager’s office. It stated that handwritten notes are generally used as an aide memoir for the purposes of typing the formal notes after meetings and that in this case, the handwritten notes had been disposed of in the normal manner i.e. confidential shredding. It added that although there was no destruction log, the manager confirmed that the handwritten notes taken were “rough notes” and were shredded once the formal minutes of the meeting were typed.

In her submissions to this Office, the applicant expressed concerns about the HSE’s claim that the notes were shredded. She questioned what evidence this Office had that the records existed or that they were shredded in a confidential manner. She also expressed concerns as to whether the destruction of such notes without her knowledge or consent would be perceived as correct procedure under data protection legislation. She suggested that all minutes, whether written or typed, should be signed off and agreed by persons involved in the meeting as a normal procedure. She also suggested that the records were not legally disposed of in the absence of a destruction log.

I should say that I have no reason whatsoever to doubt the HSE’s assertion that the records sought have been destroyed, nor has the applicant presented any evidence to suggest that they still exist. Furthermore, this Office has no role in examining the appropriateness, or otherwise, of the destruction of the records or of the manner in which they were destroyed. On this point, it is noteworthy that formal records of the meetings in question were prepared and retained on the relevant file. Having regard to the HSE’s explanation as to why the records sought no longer exist, I am satisfied that it was justified in refusing the applicant’s request under section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to applicant’s request for access to the handwritten minutes of meetings taken by a named individual on two specified dates under section 15(1)(a) of the FOI Act on the ground that the records sought no longer exist.

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