Whether the HSE was justified in refusing access, under section 15(1)(a), to records relating to the restructuring of a specific post in the Mental Health Services on the ground that no further records exist or can be found

7 November 2023

Background

In a request dated 12 December 2022, the applicant sought access to records of communications from June 2017 between psychology management in a specific area and a named senior manager in the Mental Health Services regarding the restructuring of senior psychology post, including communications made on 15 June 2017. In a decision dated 23 January 2023, the HSE refused the request under section 15(1)(i) on the ground that the records requested had been released to the applicant in response to a previous FOI request he had made. The applicant sought an internal review on 16 February 2023 on the basis that the particular records he is seeking had not been provided in response to his previous FOI requests. Having failed to issue its internal review decision within the prescribed time, the HSE subsequently issued its effective position to the applicant on 11 April 2023, wherein it affirmed its original decision. On 13 April 2023, the applicant applied to this Office for a review of the HSE's decision on the basis that he had not been provided with the records he requested.

During the course of this review, the HSE said that, in addition to refusing the applicant's request under section 15(1)(i), it is also relying on section 15(1)(a) of the Act after having carried out fresh searches for the records sought by the applicant. On 9 October 2023, the Investigating Officer provided the applicant with details of the searches provided by the HSE to this Office, along with its rationale for refusing his request under section 15(1)(i) of the Act. The applicant was invited to provide further submissions of his own. To date, no further submissions have been received from the applicant.

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 applicant and the HSE as described 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

While the applicant's request was initially refused by the HSE under section 15(1)(i) of the Act, as noted above, the applicant considers he not been provided with the relevant records he requested.

Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse, under section 15(1)(a) of the FOI Act, the applicant's request for access to records of the communications set out in his request between the psychology management team and the named mental health services manager regarding the restructuring of the particular post, on the ground that they do not exist or cannot be found.

Analysis and Findings

Section 15(1)(a)

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. The Commissioner's role in a case such as this 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search"� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note at the outset that a review by this Office is considered to be "de novo", which means that it is based on the circumstances at the time of our decision and is not confined to the basis upon which the FOI body reached its decision. As outlined above, the HSE said it carried out fresh searches during the course of this review, details of which were provided to the applicant by this Office. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

The HSE initially refused the applicant's request under section 15(1)(i) of the Act as records were previously released to the applicant in response to similar requests he had made in the past. It said the applicant had confirmed receipt of those records but has reiterated the specific records sought in this current review have not been released previously. The HSE said that those records released previously were not re-released in response to this FOI request as the applicant had not specifically requested their re-release. It said those records can be re-issued if necessary. As I understand it, the applicant is seeking access to records other than those he received previously.

The HSE said that no additional records were found after new searches of the available email accounts and the Mental Health Services Shared drive were conducted. The HSE said that the relevant individuals were contacted with regard to the communications sought by the applicant and that all parties advised that they have no further communications to add to what they had returned in response to the applicant's previous FOI requests. The named mental health services manager advised she does not have any relevant communication dated 15 June 2017.

In regards to the restructuring of the post in question, the HSE said that a business case and/or supporting documentation was not created for the restructured post as there was not a vacancy to fill but this was an internal re-assignment to meet specific and critical service needs, so no formal business case was required or submitted. The HSE said it was practice to consult and agree with the Head of Mental Health Services regarding any reassignment of staff within Mental Health Services and this was done through verbal communication only.

In regards to any relevant correspondence dated June 2017, the HSE stated that a verbal review of the Senior Psychology post took place between named managers in the Mental Health Services including a consultation to assess critical service needs. The HSE said that the Head of Mental Health Services confirmed that although the standard practice was to document these 1:1 meetings with line managers, no record of said meeting or any follow up correspondence can be found following numerous searches.

As noted above, details of the HSE submissions were provided to the applicant by the Investigating Officer who invited him to make further submissions. The applicant did not respond to this invitation.

This Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. Nonetheless, section 15(1)(a) of the Act requires an FOI body to take all reasonable steps to locate relevant records.

In the absence of evidence to suggest that further searches should have been undertaken, it seems to me that the HSE has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no relevant records can be found. In the circumstances of this case, I find that the HSE was justified in refusing access to records relating to the applicant's request under section 15(1)(a) of the FOI Act, on the ground that no further 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 FOI Act, I hereby affirm the decision of the HSE to refuse access, under section 15(1)(a) of the FOI Act, to records relating to the applicant's request on the basis that no such 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.

Richard Crowley
Investigator