Whether the NAS was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to ambulance lumbar support concerns on the basis that no further records exist or can be found

14 December 2023

Background

In a request dated 25 January 2023, the applicant sought access to records which show how concerns about ambulance lumbar support was progressed by the National Ambulance Service. He stated that the request included records of all documents to show how the NAS and any other office or agency involved have handled a suggestion on the matter made in a letter dated 20 May 2022 written by a named doctor, a copy of which the applicant attached to his request.

On 1 March 2023, the NAS granted the applicant's request. On 21 March 2023, the applicant made an internal review request stating that he believed further records exist which had not been released to him. On 18 April 2023, the NAS issued its internal review decision, refusing access to further records under section 15(1)(a) of the FOI Act. On 16 May 2023, the applicant applied to this Office for review of the NAS decision on the basis that he believes further relevant records ought to exist.

During the course of this review the NAS identified additional records which it released to the applicant. Subsequently, the NAS informed this Office that further records relevant to the applicant's request may exist in relation to an investigation being carried by the Health and Safety Authority (HSA). The NAS indicated that it does not wish to release information relating to the HSA investigation at this time.

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 submissions made by both parties. 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 NAS was justified, under section 15(1)(a) of the Act, in refusing access to further records relevant to the applicant's FOI request on the basis that no further records exist or can be found.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the 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 conduct 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.

In its initial submissions to this Office, the NAS provided details of the searches it had undertaken to locate all relevant records, details of which were provided to the applicant. During the course of this review, the NAS identified a number of additional records which it released to the applicant, including an ergonomic report and national incident report form. Subsequently, the NAS informed this Office's Investigating Officer that the HSA is carrying out an investigation into the matter and that it holds additional records that may be relevant to the applicant's request. It did not identify the particular records it holds in this regard. The NAS indicated it is concerned about releasing information at this time that may affect the HSA's investigation and suggested waiting until the HSA investigation is complete before considering the release of any further relevant records.

In the circumstances, I am not satisfied that the NAS has demonstrated that it has undertaken all reasonable steps to ascertain the whereabouts of all relevant records in this case. Having regard to its submissions, it is evident that the NAS may hold further records relevant to the applicant's request that it had not considered in making its decisions on the applicant's FOI request. However, I do not consider it appropriate to simply direct the release in full of the records that the NAS has since identified, in circumstances where it has argued against the release of those records at this time. Furthermore, it is not appropriate that this Office should be a first instance decision maker to determine what, if any, of this information qualifies for exemption.

Instead, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of the NAS to refuse the applicant's request for further records under section 15(1)(a) of the Act. The effect of this is that the NAS must consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the NAS. I find it was not justified, under section 15(1)(a), in refusing accessed to further relevant records, and I direct it to make a fresh decision on the applicant's FOI request.

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