Whether Sunbeam House Services was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant's request for records containing references by the board of directors to five specified staff members on the ground that no records exist or can be found

31 January 2024

Background

On 9 March 2023, the applicant and four of his colleagues made a joint request to SHS for a copy of emails, meeting minutes or any other relevant documentation to/from the Board of Directors which included references to the five individuals in their current roles, from 1 January 2022 to the date of the request. The request specified that they were seeking emails to/from the Board of Directors as a committee, as well as to/from individual board members, and that they were also seeking any communications with the HSE. On 24 March 2023, SHS sent an acknowledgment of the request to the five requesters. It stated: "we can only provide you with personal information where you are identified as an individual. And then only the identified individual will receive a copy of that specific information." On 5 April 2023, a further letter issued to the requesters apologising for the delay and stating that due to the complexity of the request, an extended period was required and that the request would be completed by no later than 31 May 2023. On 25 May 2023, SHS issued separate decisions to each of the requesters. It refused the applicant's request under section 15(1)(a) of the FOI Act, stating that the record(s) concerned do not exist or cannot be found. The applicant sought an internal review on 26 May 2023. SHS affirmed its decision on 24 July 2023. On 31 July 2023, the applicant applied to this Office for a review of SHS's decision. He said that he believed that emails existed that referred to him either by name or job title.

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 SHS and the comment made by the applicant in his application for review. I have also had regard to certain records provided to this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned only with the question of whether SHS was justified in refusing the applicant's FOI request on the basis that no relevant records exist or can be found.

Preliminary Matters                                                                                                         

Section 14 of the FOI Act provides that, in certain limited circumstances, an FOI body may extend the four-week period for making a decision on a request by up to four weeks. The requester must be notified of such a decision and section 22(1)(e) of the Act provides that they may make an application for review by the Information Commissioner of such a decision. A requester does not have to go through the internal review process before making such an application

In this case, SHS extended the timeline for processing the request by approximately seven weeks, stating that this was due to the complexity of the request. It made no reference to section 14, or the relevant sub-section that it was relying on, and did not inform the requesters of their right to review by the Commissioner. It appears to me that SHS erroneously extended the timeframe for making a decision on this request, however a review was not sought on this matter. For future requests, I direct SHS to theManual Part 1 - Processing FOI Requests Including Sample Letters, produced by the Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform and available on itswebsite, which explains section 14 and provides useful template letters.

Analysis and Findings

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 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 that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply 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.

In a submission to this Office, SHS described the searches that it undertook for relevant records. It said that it searched the MailMeter for emails sent by, or to, each individually named member of the board using a range of search terms: the first names of the five requesters, the surnames of the five requesters, and then the job titles of the requesters in various iterations (e.g. the full job title, a shorter version of it, an acronym, the name of the team that they're on, the acronym for that team etc), for the period 1 January 2022 to 9 March 2023. SHS said that this initial search brought up 2064 emails which were then reviewed to determine whether they might contain personal data, for example, where performance was discussed. It said that following this review it determined that 58 emails contained such personal data. It said that having considered these records and having sought legal advice, it was determined that in relation to four of the requesters, no records existed. In reaching this conclusion, it said that while it understood that references were made to certain staff members as a group, it determined that as they were not mentioned by name, they could not be uniquely identified as specific individuals. It noted that the requesters, all of whom have the same job title, are part of a bigger team which includes other individuals.

SHS provided copies of the 58 emails to this Office. In seeking focused submissions from SHS, I noted that on an initial review of the records, it seemed to me that at least some of them contained references to the requesters in a way that was identifiable. I noted that I appreciated that there was some difficulty in interpreting what exactly falls within the scope of the request, when the requesters formed part of, but did not constitute the entirety of, a team within the organisation. In this context, I asked SHS to provide a full explanation as to the basis for concluding that no records existed, but no further explanation was received.

Having carefully examined the records, I simply cannot find that SHS was justified in refusing the applicant's request on the basis that no relevant records exist. The fact that a person isn't explicitly named does not, in my view, mean that they are not identifiable, particularly given that it is a relatively small group of individuals who form part of a team that is also relatively small. I note that the applicant and the other four requesters made the FOI request jointly and in such circumstances it seems to me that they were not only seeking references to themselves as individuals, but as a group. If there was any doubt as to the precise nature of what they were looking for, it was of course open to SHS to seek clarification rather than to take a narrow interpretation of the request. I also note that in circumstances where a joint request is made, and where relevant records could potentially contain personal information relating to one of the requesters, it is open to the FOI body to confirm whether or not the requesters consent to their personal information being released to the other requesters. Section 37(2) refers.

While I have concluded that SHS was not justified in refusing the applicant's request, it is not the role of this Office to act as a first instance decision-maker on the records that potentially do fall within the scope of the request. I consider that the most appropriate course of action is to annul the decision of SHS and to direct it to make a new decision on the request, having regard to the contents of the individual records and 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 he is not satisfied with the new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of SHS. I find that it was not justified, under section 15(1)(a), in refusing the request and I direct it to make a fresh decision.  

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.

Emer Butler
Investigator