Whether the HSE was justified in its decision to extend the period for consideration of the applicant’s FOI request under section 14 of the FOI Act

15 December 2020

Background

This case has its background in previous reviews conducted by this Office on FOI requests made by the applicant to the HSE.

In 2017/18, I reviewed a decision of the HSE to refuse the applicant’s request for a record of a complaint/observation made about the applicant on the ground that the record sought could not be found. I affirmed the HSE’s decision based on the details it provided to this Office of the searches undertaken to locate the record. The record at issue was subsequently located, following which the applicant submitted a fresh request for information relating to the searches conducted during the processing of the first request. Specifically, she sought details of the searches conducted when processing the first request, as notified to this Office during the earlier review, and a copy of any lists of the staff who were asked to provide records, if they exist.

The HSE refused that second request under section 15(1)(g). Following a review by this Office, I annulled the refusal of the request under section 15(1)(g) on 1 September 2020 and directed the HSE to consider the request afresh.

On 29 October 2020, the HSE informed the applicant that it was extending, under section 14(1)(a) of the Act, the period for processing her request by 20 working days. It said she could expect to receive a decision by 27 November 2020. It also informed her that she could apply to this Office for a review of its decision to extend the timeline for processing the request.

On 3 November 2020, the applicant sought a review by this Office of that decision. On 6 November 2020, the HSE issued its substantive decision on the request.

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 correspondence between this Office and both the HSE and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the HSE’s decision to extend the deadline for considering the applicant’s request was in accordance with the provisions of section 14 of the Act.

Analysis and Findings

I should say at the outset that as the HSE has since issued its substantive decision on the request, this decision can have no tangible benefit for either party. Nevertheless, in light of the HSE’s submissions, I consider that it will be useful for the HSE to be informed of this Office’s findings on the applicability of section 14(1) in cases such as this.

Section 14(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, under section 14(1), it may extend that four-week period by up to four further weeks where it considers that

(a) the request relates to such number of records, or

(b) the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such, that compliance with section 14(1) within the four weeks specified is not reasonably possible.

In submissions to this Office, the HSE stated that there was a requirement to request an extension due to the current demands on the service attributable to the HSE’s current efforts in combatting Covid-19 locally. It stated that the increasing demand has required staff redeployments across all services, which has resulted in delays, particularly in the administrative services within the hospital that would hold the records relevant to the applicant’s request. It stated that the HSE and the hospital are very cognisant of the requirement to meet legislative timeframes in the Act, however due to the current and on-going extenuating circumstances, the decision maker was left with no option but to extend the timeframe. It further stated that there was a resource issue locally, but this has since been rectified.

The HSE’s reason for extending the time required to process the applicant’s request under section 14(1)(a) in this case essentially comes down to staff unavailability to process the request due to demands on other areas of the HSE’s responsibilities and duties.

As I have stated in previous decisions, I accept that many FOI bodies faced and continue to face significant challenges in processing FOI requests as a result of the exceptional working arrangements that are necessary during the ongoing COVID-19 pandemic. I acknowledge that in some cases, staff in FOI bodies, the HSE in particular, have had to be reallocated to roles that are seen as critical to supporting the national response to the pandemic.

Nevertheless, the circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific. Section 14(1)(a) is essentially concerned with requests that involve large numbers of relevant records, which was not the case in this instance. The section does not provide for the extension of the four-week period on the ground of the administrative challenges described by the HSE. As such, I find that section 14(1)(a) of the Act does not apply in these circumstances.

I would also note that the advice provided to FOI bodies by the Department of Public Expenditure & Reform is to ensure that FOI requests are processed to the greatest extent possible during the COVID-19 pandemic. This is set out in the Guidance Document issued by the Department entitled Continuity of FOI services during the COVID-19 pandemic (available at https://foi.gov.ie/continuity-of-foi-services/). While the initial difficulties arising from the redeployment of staff, amongst other things, were understandably significant, I would expect that the vast majority of bodies would have made arrangements in the intervening period to ensure, to the greatest extent possible, continuity of service across all of its functions, including its functions relating to the processing of FOI requests.

In conclusion, therefore, I find that the HSE was not justified in extending the period for consideration of the request under section 14 of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision to extend the period for consideration of the applicant’s request under section 14 of the Act in this case.

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