Whether the HSE was justified in refusing three separate requests for correspondence relating to a named nursing home under section 15(1)(c) of the FOI Act on the ground that processing the requests would cause a substantial and unreasonable interference with, or disruption of, its work

18 February 2021

Background

In three separate requests, one dated 13 August 2020 and two dated 3 September 2020, the applicant sought access to various records relating to a named nursing home in Co Louth. In the first request she sought all correspondence to and from Louth Older Persons Service for the period 31 March 2020 to 31 May 2020 regarding the nursing home. The requests dated 3 September 2020 were for all correspondence to and from two named HSE staff members to include correspondence with four named parties for the period 27 March 2020 to 15 May 2020.

On 6 October 2020, the applicant sought an internal review of the HSE’s deemed refusal of her requests and other requests she had made. Following her submission to this Office of an application for a review of the HSE’s deemed refusals of her internal review requests, the HSE issued its effective position on the three requests at issue. On 9 December 2020, it wrote to the applicant in relation to her request dated 13 August 2020 wherein it said it was refusing the request under section 15(1)(c) of the FOI Act. On 8 January 2021, it wrote to the applicant in relation to the other two requests of 3 September 2020, similarly refusing them under section 15(1)(c).  On 22 January 2021, the applicant asked this Office to review the HSE’s decisions on her requests.

I have now completed my reviews in accordance with section 22(2) of the FOI Act. Having regard to the similar nature of the three requests and the HSE’s decisions on same, I have decided to conclude the reviews by way of a formal, binding, composite decision. In conducting the reviews, I have had regard to the correspondence between the HSE and the applicant as set out above and to the correspondence between this Office and both parties on the matter.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decisions to refuse the applicant’s requests for correspondence relating to a named nursing home under section 15(1)(c) of the FOI Act.

Analysis and Findings

Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, wok (including disruption of work in a particular functional area) of the body.

However, section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.

During the course of the review, Ms Whelan of this Office asked the HSE to clarify whether it had complied with the requirement under section 15(4) to assist, or offer to assist, the applicant in amending his request.

In a telephone conversation of 11 February 2021, the HSE said that the requests were received during the Covid-19 crisis when the nursing home in question and the HSE was experiencing staff shortages and other difficulties. It said that the applicant has made numerous requests to the HSE for similar records. It said that in relation to previous requests not the subject of this review, the HSE had engaged with the applicant with a view to narrowing the scope of her requests, but that she failed to do so. It said that in those circumstances, it considered the requests that are subject to this review to be similar to previous ones by the applicant and it refused the requests under 15(1)(c) without engaging the applicant with a view to narrowing the scope.

While I can fully understand and appreciate the difficulties the HSE has faced in recent months and continues to face in its ability to effectively deliver services as a result of the Covid-19 crisis, the fact remains that the Act and all of its provisions remains in force.

The Department of Public Expenditure and Reform has issued guidance for FOI bodies for dealing with requests during the crisis. The guidance, entitled “Continuity of FOI Services”, explains that the FOI Act remains in force and arrangements must be put in place to ensure that requests continue to be processed to the greatest extent possible. It encourages FOI bodies to proactively engage with requesters. Indeed, while the guidance suggests that section 15(1)(c) may be relevant where either a particular unit has been significantly impacted, or where processing the request would impose an unreasonable workload on the organisation or a particular business unit having regard to current resourcing and working arrangements, it specifically notes that section 15(4) requires that the body must first “assist or offer to assist” the requester in making a more focused request.

It is clear that the HSE did not assist or offer to assist the applicant as required under section 15(4) of the Act in this case. While I acknowledge the unprecedented circumstances outlined by the HSE, the provisions of the FOI Act are clear. An FOI body cannot refuse a request under section 15(1)(c) unless it has complied with the requirements of section 15(4) beforehand.

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decisions of the HSE and to direct it to undertake a fresh consideration of the requests. If the HSE intends to rely on section 15(1)(c) in making its decisions, it must comply with the requirements of section 15(4) beforehand.

For the benefit of the applicant, I should explain that a failure to engage with the HSE with a view to narrowing the scope of a request may result in her requests being refused under section 15(1)(c) of the FOI Act. FOI bodies are required to go through the rigorous processing requirements of the FOI Act. However, the Commissioner also takes the view that requesters have a responsibility to act reasonably in relation to the processing of their requests by FOI bodies. Should the HSE fulfil its obligations under section 15(4) of the Act, it may be entitled to rely on the provisions of section 15(1)(c) in refusing a request on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work. It is also important to note that an FOI body is entitled to refuse a request where it considers the request to form part of a pattern of manifestly unreasonable requests.  It seems to me that there may be some merit in the applicant engaging with the HSE with a view to establishing the precise nature of the information she wishes to access.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decisions of the HSE to refuse the applicant’s requests under section 15(1)(c) and I direct it to consider the requests afresh.

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