Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant-�s request for access to a statement submitted by his line manager to the Nursing and Midwifery Board of Ireland (NMBI) in response to a complaint he had made on the ground that it does not hold the record sought

13 February 2020

Background

This case has its background in a complaint the applicant made to the Nursing and Midwifery Board of Ireland (NMBI) against his line manager, who is a HSE staff member. Having been notified of the compliant, the line manager submitted a statement to NMBI in response. The NMBI did not proceed with an examination of the applicant-�s complaint as it deemed the complaint to be outside remit.

On 30 May 2019, the applicant submitted a two-part FOI request to the HSE. At part 1, he sought access to all records relating to the statement signed by his line manager.  At part 2, he sought access to contemporaneous notes, reports, diary entries, medical records, photographs etc. that could assist in the consideration of a complaint that he had submitted to NMBI concerning his line manager.  

On 28 June 2019, the HSE issued a decision, wherein it refused part 1 of the request under section 15(1)(a) on the ground that it does not hold the records sought and it refused part 2 of the request under section 15(1)(b) on the ground that the applicant had not provided sufficient details to enable the records sought to be identified by the taking of reasonable steps.

On 22 September 2019, the applicant sought an internal review of the HSE-�s decision in relation to part 1 of the request. He said he was seeking a copy of the response his line manager sent to the NMBI.  The HSE issued an internal review decision on 14 October 2019 in which it affirmed its original decision to refuse the relevant part of the request under section 15(1)(a).  On 21 October 2019, the applicant sought a review by this Office of the HSE-�s decision.

The applicant also submitted an FOI request to the NMBI for a copy of his line manager-�s statement.  The NMBI-�s decision on that request is the subject of a separate review by this Office (OIC-59016). 

During the course of the review, Ms Swanwick of this Office forwarded to the applicant details the HSE had provided of the searches it had undertaken to locate the relevant record and of its explanation as to why it did not hold the record.  She informed him of her view that the HSE was justified in refusing access to the record sought under section 15(1)(a). In response, the applicant indicated that he wished to receive a decision on the matter.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to the communications between this Office and both the HSE and the applicant on the matter.

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 the applicant-�s request for access to the statement submitted by his line manager to NMBI in response to a complaint he had made against that individual.

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 engagements with this Office, the HSE stated that the complaint at issue in this case was made by the applicant to the NMBI and not to the HSE. It stated that the line manager did not provide the HSE with any information relating to that complaint and as such, it does not hold the record sought. It said the line manager confirmed that she had received a letter about the complaint that had been sent to her personal email address. She said she was not seeking support from her line manager on the matter and had not provided her with a copy. The relevant Director of Nursing and Business Manager were contacted and they confirmed that no NMBI or human resources type complaints had been received in relation to the applicant-�s line manager.

Having considered the HSE-�s explanation as to why it does not hold the statement sought by the applicant, I am satisfied that the HSE was justified in refusing access to the record on the ground that it does not hold the record sought. I should add that while the FOI Act defines records held by a public body as including records under the control of the body, I am satisfied that the record sought in this case is not under the control of the HSE.

Had the applicant made a complaint to the HSE in relation to a human resources issue, I would expect the HSE to hold copies of records relating to that complaint. However, that is not what happened in this case. Instead, he made a complaint to the independent body that is charged with examining complaints about the behaviour, conduct, practice or health of registered nurses or registered midwives. As such, I am satisfied that the record sought would properly be held by the NMBI.

In conclusion, therefore, I find that the HSE was justified in refusing access to the record sought on the ground that it does not hold the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant-�s request for access to the statement submitted by his line manager to NMBI under section 15(1)(a) 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