Whether the HSE was justified in refusing access to details of all purchase orders over €20,000 for the period 2018, 2019, and for the first three quarters of 2020 for certain hospitals of the Dublin Midlands Hospital Group under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work

19 March 2021

Background

On 22 October 2020, the applicant submitted a request to the HSE for a list/database/or spreadsheet of all purchase orders of over €20,000 for the period 2018, 2019 and for the first three quarters of 2020 relating to the Midland Regional Hospital. On 23 October, the HSE asked the applicant if he was seeking details relating to one of the Midland Regional Hospitals or all four hospitals in the Dublin Midlands Hospital Group. In response, the applicant said that he would eventually be seeking the data for all the hospitals. He suggested that all four could be processed together or could be treated as four requests if that was more convenient.

In a decision dated 4 December 2020, the HSE refused the request under section 15(1)(c) on the basis that the collation and coordination of the information sought would require significant and additional resources, which would have a detrimental impact on the normal functions of the statutory hospitals within the Dublin Midlands Hospital Group. The decision maker suggested the applicant could use information he had received from other parts of the HSE to amend his request so it no longer fell to be refused under section 15(1)(c).

The applicant sought an internal review of that decision, wherein he contended that the issue of the request being voluminous should not arise on the basis that the information sought should already be publicly available under the publication scheme that each public body is required to publish under section 8 of the Act.

On 7 January 2021, the HSE issued its internal review decision wherein it annulled the original decision on the request on the ground that no offer of assistance had been made to amend the request before it had been refused, as required under section 15(4). It said that in order to compile a record containing the information sought by the applicant, each hospital would have to carry out a considerable search and retrieval process to extract the required information from financial systems and hard copy records. It said that this work would cause an unreasonable interference with the work of the department and that it was refusing the request on this basis. It added that the purpose of the letter was to provide the applicant with an opportunity to amend the request so that it no longer fell to be refused on this basis.

On 29 January 2021, the applicant sought a review by this Office of the HSE’s decision. 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 set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decision to refuse the applicant's request on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.

Analysis and Findings

While the HSE did not cite any specific provision for refusing the request in its internal review decision, it is clear from the reasons given for the refusal that it was relying on section 15(1)(c).

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, work (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.

In response to a request for clarification from this Office during the course of the review, the HSE said no offer to assist was made prior to making the original decision on the request and that this was why the original decision was annulled. It said the purpose of the letter of 7 January 2021 was to assist the applicant to revise the request. It added that the Review Officer had also advised the applicant that if he wished to amend his request, he could contact the original decision maker to discuss how this might be done. It said that the applicant had not, to date, made contact with it to amend his request and that if he does, it would be happy to process same as an amended request.

In essence, the HSE is arguing that it offered assistance to the applicant at the internal review stage of the request in its letter of 7 January 2021. However, that letter was, in fact, the internal review decision. As such, the HSE did not offer assistance before refusing the request under section 15(1)(c). I find, therefore, that the HSE did not comply with the provisions of section 15(4) in this case.

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

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse the applicant's request under section 15(1)(c) and I direct it to consider the request 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