Whether the HSE was justified in refusing access to further records regarding the decision to require the applicant to retire under section 15(1)(a) on the ground that no further records exist or can be found after reasonable steps to locate them

15 November 2019

Background

This review has its background in a dispute between the applicant and the HSE as his employer concerning whether he was required to retire upon reaching a certain age. On 18 February 2019, the applicant submitted a request for all records relating to the purported decision to require him to retire from the HSE.

On 28 February 2019, the HSE purported to have made a decision to refuse the request under section 12(1)(b) of the FOI Act on the basis that the request did not contain sufficient particulars in order to identify relevant records. The decision letter stated that the HSE was asking the applicant to identify the persons whose records he would like searched. The letter also stated that the “narrowing of the scope will ensure there is a full search carried out that meets [the applicant’s] expectations”.

The applicant sought an internal review of that decision on 5 March 2019. He argued that the FOI decision maker should have had no difficulty in identifying the records sought as the decision relating to his purported retirement had been communicated to him by that decision maker.

On 19 March 2019, the HSE stated that no decision existed to require the applicant to retire as his retirement was in accordance with the superannuation process. It argued that recent changes to the retirement age did not apply to the applicant and it referred him to superannuation guidelines that it described as being in the public domain and available without the need for an FOI request. On 30 May 2019, the applicant sought a review by this Office of the HSE’s decision.

During the course of the review, the HSE provided this Office with copies of 38 pages of records and an accompanying schedule which suggested that the records had been released to the applicant with minor redactions of third party personal information. However, as it transpired that the records had not been released, the HSE provided the applicant with copies of the records during the review.

Subsequently, Ms Whelan of this Office provided the applicant with details of searches carried out by the HSE in response to his request and the opportunity to make further comments. The applicant made further comments and I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the HSE as outlined above and to communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the records the HSE released to the applicant during the review.

Scope of Review

In essence, the HSE’s position is that all relevant records coming within the scope of the applicant’s request have, at this stage, been released to him and that no further relevant records exist or can be found.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing the applicant’s request for further records relating to the purported decision to require him to retire on the ground that no further relevant records exist or can be found after reasonable steps to locate them.

Preliminary Matter

As I have outlined above, the HSE purported to refuse the applicant’s request under section 12(1)(b). Section 12 does not provide a ground for refusing requests. Rather it sets out the requirements on individuals who wish to exercise the right of access to records. Section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. The correct course of action to take where the public body considers that a requester has failed to comply with section 12(1)(b) is to refuse the request under section 15(1)(b).

Analysis and Findings

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

The records that the HSE released to the applicant comprise:

• a letter the applicant received from his line manager notifying him of his last day of service and requesting that he complete certain forms relating to his pension entitlements,
• subsequent email correspondence between the applicant and a number of HSE staff members on the matter of his retirement date,
• internal HSE email correspondence concerning the applicant’s retirement date and information held concerning his service and superannuation entitlements, and
• a copy of the HSE Employee Superannuation Scheme 201 Information Booklet to which the internal reviewer referred in his decision on internal review.

Certain information was redacted from pages 3 and 6 on the basis that it comprises personal information relating to third parties. As I am satisfied that the withheld information does not come within the scope of the applicant’s request, I do not need to give any further consideration to the question of access to that information.

In its submission to this Office, the HSE stated that there was no decision made to require the applicant to retire and that the applicant’s line manager wrote to him regarding retirement in response to a list he received from HR containing details of staff, including the applicant, approaching retirement age. The HSE stated that there was nothing different done in the applicant’s case than any other staff member approaching retirement age. It stated that searches were conducted in the Office of the applicant’s line manager and the Office of the relevant Head of Service. It stated that no other locations were searched as the information regarding the applicant’s retirement would issue only to the service area where he worked.

In his submission to this Office, the applicant argued that the HSE failed to release a record of the process whereby the list of staff members approaching retirement age was supplied to the relevant Head of Service or his line manager. He also stated that he had asked the Director of HR to review his contractual position and she undertook to seek specialist advice on the matter. He stated that as he received no response from the Director, he successfully sought a High Court injunction to restrain the HSE. He suggested that the searches should have included the Director’s files.

The applicant also pointed out that while he had received records containing information on his proposed retirement, the HSE had not provided internal correspondence such as an email or letter by which this information was sent between relevant staff members.

Following further enquires made by this Office, the HSE confirmed that internal correspondence such as that identified by the applicant was not considered to come within the scope of the request. It further stated that it did not search records held by the staff member who had undertaken to seek specialist advice as it did not consider such records to come within the scope of the request. Correspondence between the applicant and that staff member was released during the course of the review, but it is clear from the records provided that this correspondence was located by searching another staff member’s email account that was copied into the email thread.

It seems to me that the HSE has taken an unduly narrow interpretation of the applicant’s request. It appears to have taken a position that no specific decision was made by the HSE requiring the applicant to retire as an automatic process applied and that as such, no relevant records exist. If this is the case, I disagree. In my view, the letter notifying the applicant of his last day of service and requesting that he complete certain forms relating to his pension entitlements represented a determination by the HSE that he was due to retire, notwithstanding that the letter may have issued as part of a standardised process that applies to all staff nearing retirement age.

The applicant sought all records relating to that determination in circumstances where he had sought to challenge that determination. As such I fail to see how the HSE can reasonably argue that the letter of notification to the applicant was the only relevant record coming within scope. In my view any subsequent consideration of the matter by the HSE relates to that determination and all records relating to such considerations come within the scope of the request.

In my view the HSE should have consulted with a wider range of relevant staff in an effort to identify relevant record, based on a broader interpretation of the applicant’s request. In the circumstances I find that the HSE was not justified in refusing to release additional relevant records under section 15(1)(a) as it has not carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records.

I consider, therefore, that the appropriate course of action to take is to annul the HSE's decision in respect of the applicant’s request, the effect of which is that the HSE must consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the HSE's decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse, under section 15(1)(a), the applicant’s request for records relating to the decision to require him to retire. I direct the HSE to conduct a fresh decision-making process in respect of the applicant’s 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