Whether the HSE was justified in refusing access to further records relating to the applicant on the grounds that they do not exist or cannot be found

18 December 2019

Background

This case has its background in a service arrangement between the HSE and the Western Care Association (hereafter the Association) where the Association provides care to the applicant and numerous other clients of the Association, and receives funding from the HSE for those services.

On 4 January 2019, the applicant’s mother submitted a request to the HSE on behalf of the applicant for all records relating to him held by the HSE, including an assessment of specific needs, a statement outlining the annual budget for services, a detailed expenditure breakdown of this budget for the last four years (since August 2014) and the Agreement with Service Provider(s). All references to the “applicant” in the remainder of this decision may be read as references to the applicant himself, or his mother, as appropriate.

In a decision dated 28 February 2019, the HSE granted access to some records, but refused access to records containing a detailed expenditure breakdown of the budget for the last four years on the grounds that no relevant records exist or could be found. Following a request for internal review, in which the applicant contended that further records should exist, the HSE affirmed its original decision. It provided some information as to why further records did not exist or could not be found. On 26 August 2019, the applicant sought a review by this Office of the HSE’s decision.

During the course of this review, this Office provided the applicant with details of the searches undertaken by the HSE and of its reasons for finding that the further relevant records sought do not exist or cannot be found. The applicant did not revert to this Office to indicate whether he wished to continue with his application in light of the search details provided. I also note that the HSE released some further records to the applicant during the course of this review.

Accordingly, I have decided to conclude my review by issuing a formal, binding decision. In carrying out my review, I have had regard to the comments made by the applicant in correspondence with this Office and to the submissions made by the FOI body in support of its decision.

Scope of the Review

The scope of this review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant on the ground 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 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 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 submissions to this Office, the HSE provided details of searches conducted and the reasons why the HSE would not hold the further records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the HSE submitted that the type of further records sought by the applicant would likely be held by the Western Care Association and not the HSE, or else would not exist in the first instance.

It stated that the HSE does not have individual service arrangements with respect to each client, and that funding is given as a lump-sum to the Service Provider on an annual basis, and therefore a detailed expenditure breakdown wouldn’t be held by the HSE and an Agreement with the Service Provider wouldn’t exist. I note that the general Service Level Agreements between the HSE and the Association for the years requested were released to the applicant during the course of this review, along with four related documents that contained personal information relating to the applicant.

In its submission, the HSE stated that it had undertaken a number of searches of both hard copy files and electronic correspondence and consulted all relevant staff. It stated that, apart from the four records released to the applicant during the course of this review, no further records could be located by the HSE. The HSE stated that it was likely that records of the kind sought by the applicant in relation to budgets and expenditure for care services would be held by the Association as it provides the care services, while the HSE provides funding for it.

It is important to note that the Association is an independent FOI body. The HSE stated that, due to this, it had not sought records from the Association in relation to the applicant’s request. The HSE further stated that it had provided contact details for the Association and another body it thought might be relevant to the applicant’s request, and did not forward parts of the applicant’s request to these bodies at the instruction of the applicant.

Having considered the details of the searches undertaken and explanations by the HSE as to why it would not hold the further records sought, I am satisfied that the HSE has justified its decision to refuse the applicant’s request. I find, therefore, that the HSE was justified in refusing access to records on the ground that no further relevant records exist or can be found.

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 further records relating to him on the ground that the records sought do not 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