Whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant’s work circumstance and work environment on the ground that no further relevant records exist or can be found

17 December 2020

Background

The applicant is a HSE employee and works in a Primary Care Centre (PCC). It appears she encountered issues with her workplace. The building in which she works is owned by a public private partnership company (PPPCo). Under the Public Private Partnership Contract the PPCo are responsible for the management of all required hard and soft facility services. This has been subcontracted to a named company. The PCC at issue is part of a national bundle of fourteen centres. The HSE Estates unit manages the contract and is a point of contact between the named company and PCCs.

On 3 December 2019, the applicant submitted a request for “records held by the HSE that pertain to the concerns I have raised about my work circumstances and work environment in the last two years”. She said the records sought would include records, minutes from relevant meetings, communications, reports and risk register. She listed seven units within the HSE she had contact with in relation to the matter that may hold records. She also named her Union and the named company that the HSE may have corresponded with on the matter. She also said that HSE management may have had contacts with other units of which she was unaware.

In a decision dated 31 January 2020, the HSE decided to part-grant the request. It redacted parts of some records under section 36(1)(b) which is concerned with the protection of commercially sensitive information.

On 29 February 2020, the applicant sought an internal review of that decision. She identified a number of records she believed to be missing, including an air quality test report, records relating to the management of the temperature in PCC, a specific document referenced in an email released, records relating to an ergonomic assessment, and records relating to a risk register. On 11 March 2020, the HSE varied its original decision, releasing further records to the applicant.

On 21 May 2020, the applicant sought a review by this Office of the HSE’s decision. In her application for review, she identified the following records or categories of records that had not been released to her:

• Information from the risk register, namely a stress risk assessment carried out on her,
• the report arising from an air quality test carried out in 2018 and follow up communications relating to air quality testing, and
• an ergonomic report from an assessment carried out on her in April 2018 and related communications.

During the course of the review, on 25 August 2020, the HSE released over ninety pages of further records to the applicant, mainly relating to the ergonomic assessment. It also said it was no longer relying on section 36(1)(b) and released in full the records previously redacted.

During the course of the review, the Investigating Officer provided the applicant with details of the searches carried out by the HSE and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that the HSE was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited her to make a submission on the matter. The applicant responded indicating she believed that further records exist. Therefore, I consider it appropriate to conclude this review by way of a formal, binding decision. In carrying out 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

This review is concerned solely with whether the HSE was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for access to additional records relating to the categories of records identified above 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 for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for the relevant records.

During the course of this review, the HSE provided submissions to this Office. 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 searches were carried out in the General Manager’s Office and two staff members report to the General Manager. The HSE also carried out searches in four other units including HSE Estates Unit. It said that physical searches were carried by name, location and keyword.

Risk Register

At original decision stage, the HSE released a stress risk assessment belonging to a different HSE employee. It also released the risk register of a different PCC. It did however release records relating to the applicant’s risk assessment and the risk registrar of her PCC. The applicant is of the opinion that further records should exist. In particular, she queried whether her line manager had a different risk assessment as amendments were supposed to be made to it. The HSE contacted the applicant’s line manager who confirmed she does hold additional records of this nature. The HSE said it has released all records of this nature to the applicant.

Air Quality Report

Throughout the records released to the applicant there is reference to an Air Quality Report having been carried out by the named third party company in 2018. The HSE released records which indicated that a named employee was following up with the named third party company. The HSE explained that it is that named employee’s role to manage the local aspects of the contract for seven centres.  As outlined to the applicant, that named employee used sixteen keywords/ phrases when carrying out electronic searches. The HSE also listed the HSE personnel with whom he corresponded with in relation to this matter. The HSE explained that the references to following up on the issue and further communications between the parties occurred via telephone conversations, of which there is no record. The HSE said that most local matters are discussed with the named company in the first instances.

The HSE explained that an air quality report was not carried out in 2018. It outlined that certification documents and data sheets on the filters was received and this formed part of the certification documentation upon completion of the Primary Care Centre building. It said it received one report in January 2020, which was later released to the applicant.

Email Correspondence

In correspondence with this Office, the applicant highlighted instances where email threads stop or there appears to be a gap. In relation to one instance, the HSE acknowledged there is a gap or lack of correspondence. It contacted the named individual who then carried out further searches. She confirmed that she carried out electronic searches on network files and archived emails. The staff member stated that she does not hold all emails and deletes emails on a regular basis as her inbox reaches capacity. In response to another query, the HSE acknowledged that it inadvertently omitted for consideration an email which it then released to the applicant in December 2020.

It is, in essence, the HSE’s position that no further relevant records can be found or do not exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that that record ought to exist.

While the applicant is not satisfied with the extent of the information released to date, it is also important to note that the test in section 15(1)(a) is whether all reasonable steps have been taken to locate relevant records. It is clearly envisaged by the Act that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. The FOI Act does not require absolute certainty as to the existence or location of records, as situations may arise where records are lost or simply cannot be found. There are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.

I find, therefore, that the HSE was justified in refusing access to any additional relevant records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the HSE’s refusal of the applicant’s request for further records relating to her working conditions apart from those already released under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator