Whether the HSE was justified in effectively refusing to grant access, under section 15(1)(a) of the Act, to any further records containing details of the searches conducted when processing a previous request made by the applicant for certain records, apart from those released during the review

17 June 2021

Background

This case is related to a number of previous reviews conducted by this Office. In 2018, I affirmed the HSE’s refusal of a request made by the applicant 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 decision based on the details the HSE 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 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, if they exist, of the staff who were asked to provide records.

The HSE refused that second request under section 15(1)(g) which provides for the refusal of frivolous or vexatious requests. Following a review by this Office, I annulled the HSE’s refusal of the request under section 15(1)(g) on 1 September 2020 and directed the HSE to consider the request afresh. The HSE issued a fresh decision on the request on 6 November 2020. It released a copy of the record sought in the earlier request that was subsequently located, but refused access to any records of the searches conducted when processing that earlier request under section 15(1)(a) on the ground that no relevant records could be located. The decision maker said she had contacted the previous FOI Officers and ascertained that a paper record of the searches/requests made by phone/in person was not created.

The applicant sought an internal review of that decision, following which the HSE affirmed its original decision. The decision maker noted that she had contacted previous FOI officers at the named hospital involved and they had stated that no paper record of searches was retained by them. On 4 January 2021, the applicant sought a review by this Office of the HSE’s decision.

During the course of this review and following engagements with this Office, the HSE located three records of relevance to the applicant’s request and released them to the applicant. The records comprised an internal email created on foot of the first review by this Office seeking details of the searches undertaken to locate the record sought, the response to that request, and the HSE’s submission to this Office outlining details of the searches undertaken. Subsequently, this Office’s investigating officer wrote to the applicant wherein she provided details of the HSE’s submissions outlining the searches undertaken for the records sought in the request that is the subject of this review and she informed the applicant that the HSE had, at that stage, taken all reasonable steps to locate all relevant records. The applicant indicated that she was not prepared to withdraw her application for review.

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 communications between the HSE and the applicant referred to above and to communications 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 the Review

This review is concerned solely with whether the HSE was justified in effectively refusing to grant access, under section 15(1)(a) of the Act, to any further records containing details of the searches conducted when processing the applicant’s previous request other than those released during the course of the review on the ground that no further relevant records exist or can be found, having taken all reasonable steps to ascertain their whereabouts.

Preliminary Matters

I wish to make a number of comments before I address the substantive issues arising in this case. First, in her correspondence with this Office, the applicant raised a wide range of issues concerning her dealings with the HSE. It is important to note that 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.

Second, I note that the applicant contended in her submissions that this Office cannot affirm the searches conducted by the HSE based on the poor handling of her request. As outlined above, the HSE provided some records to the applicant that are relevant to her request during the course of the review. A review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision. I issue my decision based on the issues that remain to be determined at that time, and not based solely on the decision originally made by the public body.

It is quite common for the scope of a review to change over the course of the review. Often, issues will arise during the review that were not considered during the public body’s processing of the request. Such issues may include a consideration of exemptions not previously claimed, new arguments in support of the refusal of a request, additional records uncovered during the review etc. Where I decide to conclude a review by issuing a binding decision, my decision addresses the outstanding issues to be considered at that time. This means that in this case, I must consider whether the HSE has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

During the course of the review, the HSE 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 HSE’s position is that it has located the file for the previous request, and all relevant records contained in that file have been released to the applicant at this stage, and no further records exist or can be found.

The HSE stated in its submission that contact was made with previous FOI officers in the relevant area of the HSE, who confirmed that they did not retain a copy of the searches conducted in relation to the applicant’s initial request. It said those officers confirmed it was not the practice at that time to create records outlining searches conducted/efforts of searches. It said the practice at the time was to make contact by phone with the relevant departments in order to ascertain the existence of the records.

The HSE added that contact was also made with the Medical Legal Officer, who worked in the FOI office at the time. It said that he also confirmed that it was not the practice of the FOI office to create records of searches at that time.

On the matter of why the records released to the applicant during the course of this review were not located in the first instance, the HSE said that it initially conducted searches in the particular area where files related to reviews by this Office involving the hospital in question are normally set up. It said that following the provision by this Office of information relating to the previous review, it located the relevant file in a different area. It said the relevant file was in a different area of the HSE due to circumstances in existence at the time (2017) so it was missed whilst dealing with the current request. The HSE said that, apart from the three records provided, no other records of searches were contained in the file.

In her subsequent submissions to this Office, the applicant has not provided any further information or contentions that suggest the existence of further records relevant to her request, nor that the HSE has not conducted all reasonable searches at this stage. Indeed, the applicant in correspondence with this Office stated that the relevant records provided were what she sought in her request.

Having considered the details of the searches undertaken and its explanation as to why no further relevant records exist or can be found, I am satisfied that the HSE has, at this stage, taken all reasonable steps in an effort to ascertain the whereabouts of relevant records. I find, therefore, that the HSE was justified in refusing access to any further relevant records 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) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse the applicant’s request, under section 15(1)(a) of the Act, for further records coming within the scope of her request on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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