Whether the Council was justified, under section 15(1)(a) of the Act, in refusing to release further records of correspondence between a named company and the Council relating to the applicant’s medical examinations on the ground that no further records apart from those already released could be found having taken all reasonable steps to ascertain their whereabouts

14 January 2021

Background

The applicant is an employee of Dublin Fire Brigade (DFB). The Council processes FOI requests on behalf of DFB. A named company is contracted by the Council to provide pre-employment medicals, medical referrals and vaccination programmes for its employees. The applicant was absent from work for a period of time during which he received a medical referral by his employer to the named company.

In a request dated 21 July 2020, the applicant sought access to all letters or emails sent by DFB to the named company in relation to his medical examinations in 2020 and all letters, reports and emails sent by the company to DFB in response. On 7 August 2020, the Council granted access to four records with the redaction of certain information under section 37 of the FOI Act, i.e. personal information relating to a third party. The records released to the applicant consisted of three medical reports and an electronic referral form.

On 17 August 2020, the applicant sought an internal review of the Council’s decision, wherein he suggested, among other things, that further relevant records exist. On 4 September 2020, the Council affirmed its decision on the request. It said all documents retrieved following its searches were released. On 25 September 2020, the applicant sought a review by this Office of the Council’s decision on the ground that the Council had not released all relevant records.

During the course of the review, the Council released four additional relevant email records, three in November and a further email shortly thereafter. It also released in full the information that was redacted from the records originally released.  The investigating officer sought submissions from the Council on the searches carried out to locate all relevant records. She subsequently provided the applicant with the details of the searches carried out by the Council 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 Council was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. The applicant responded on 21 December 2020 indicating he believed that further records exist.

In the circumstances, 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 Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in refusing access, under 15(1)(a) of the FOI Act, to any further correspondence between the Council and a named company during the period specified regarding the applicant’s medical examinations other than those already released on the ground that no further relevant records exist or can be found.

Preliminary Matter

As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

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 must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of the review, the Council provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Council said that medical referrals for staff are made by its Corporate Human Resources (CHR) and Dublin Fire Brigade Human Resources (DFBHR) after a period of accident sick leave or certified sick leave. The Council explained that referral is done through a secure portal which is owned by the named company. The portal is password protected and the Council has limited access rights. It said that referrals and medical reports are stored on the portal. It said it is the only system used to send referrals and medical reports and that there is no facility on the portal to send other correspondence. The Council added that human resources would occasionally email the company to change an appointment or send an update on a particular referral.

The Council said that in this case, searches were carried out in DFBHR and CHR. The applicant’s name was used in electronic searches and his personnel file was also searched. It listed ten staff members who carried out electronic searches. The Council said one staff member in DFBHR was assigned to facilitate the applicant’s medical referral. This staff member was the only person in DFBHR with access rights to the portal regarding the applicant. It said that the online referral form and three subsequent medical reports were printed and placed on the applicant’s hard copy personnel file. All hard copy files are stored in a locked cupboard in a secured office which DFBHR staff only have access.

The Council said that there were three email correspondences from the DFBHR staff member and the company which were released to the applicant in November 2020. When preparing submissions for this Office, the Council contacted the named company to confirm that no further records existed. The named company emailed the Council with a list of all correspondence it held within the scope of this review. It transpired that an additional fourth email existed that was no longer held by the Council. A copy of the email was forwarded by the named company and subsequently released by the Council. It said that email was deleted by the staff member and there was no record in DFBHR. The Council said it reviewed the practice that led to the deletion of the email. It said that in future all emails would be printed and placed on the hard copy file.

Following receipt of the details of the searches undertaken, the applicant expressed concerns about the deletion of the email and he asked that he be provided with a copy of the Council’s old and new email policies. He also suggested that the Council should request a full copy of the file and all relevant emails from the named company. The question of the appropriateness, or otherwise, of the deletion of the email referred to above is not a matter for consideration by this Office. I am also satisfied that the Council appropriately engaged with the company in relation to the existence of relevant records. I note that the applicant provided no further details as to the basis on which it might be considered that additional relevant records should exist.

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 Council 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 Council was justified in refusing access to further records apart from those already released on the ground that no such 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 decision of the Council to refuse access, under 15(1)(a) of the FOI Act, to any further correspondence between the Council and a named company during the period specified regarding the applicant’s medical examinations other than those already released 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