Decision
Mr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-146306-G2V6L3
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Cite as: [2024] IEIC 146306
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Whether the HSE was justified in refusing, under section 15(1)(c) of the FOI Act, the applicant's request for his mental health records on the ground that processing the request would cause a substantial and unreasonable interference with, and disruption of the relevant mental Health Service Office.
26 August 2024
On 29 August 2023, solicitors representing the applicant's parents submitted a request to the HSE's Mental Health Services for access to all records held relating to the applicant. A signed consent from the applicant's parents was attached to the request. The HSE sought a signed consent from the applicant. On 20 October 2023, the solicitors submitted the applicant's authorisation to the release of the records sought. The HSE treated this correspondence as the date of receipt of the request in light of receipt of the relevant consent.
I understand that on 26 October 2023, the HSE informed the applicant's solicitors by telephone that there was a large volume of records involved (seven charts with four hundred pages in each) and that the request would fall to be refused unless the request was limited. The applicant's solicitors indicated that they did not believe this was over-burdensome on the HSE. On 27 October 2023, the HSE wrote to the applicant's solicitors asking that the scope of the request be narrowed. In their reply dated 7 November 2023, the applicant's solicitors repeated their position that the request was not over-burdensome. They said they were happy to accept the records electronically.
On 15 November 2023, the HSE refused the request under section 15(1)(c) of the FOI Act on the ground that processing the request would cause an unreasonable interference with the work of the relevant Office. On 1 December 2023, the applicant sought an internal review of the HSE's decision. On 22 December 2023, the HSE affirmed its refusal of the request under section 15(1)(c).
On 8 January 2024, the applicant's solicitors submitted a fresh request to the HSE seeking access to all records relating to the applicant's care from June 2012 to the date of the request. On 15 January 2024, the HSE said the decision made remains. It said that if the applicant wished to narrow the scope of the request it would reconsider the request. It noted that the latest request was similar to the earlier request.
On 8 February 2024, the applicant's solicitors applied to this Office for a review of the HSE's decision. In their application to this Office, they indicated that the request had been "significantly" narrowed in their letter of 8 January 2024. They said they were in a disadvantaged position in making the request as the number of pages involved has not been confirmed. They suggested that all of the records could relate to the year 2012 or all could relate to a different year.
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 HSE and the applicant's solicitors as outlined above, and to the correspondence between this Office and both parties on the matter. I have decided to conclude the review by way of a formal, binding decision.
Generally speaking, this Office cannot review a decision taken on a FOI request unless it has first been through the internal review process provided for in the FOI Act. While the first request that the HSE accepted on 20 October 2023 has been through internal review, the subsequent request made on 8 January 2024 has not. As such, I cannot conduct a review of the HSE's decision to refuse the fresh request made on 8 January 2024.
Nevertheless, I note from the HSE's submissions that the fresh request did not in any way narrow the scope of the request as the applicant's solicitors suggested, as the date range for the records captured by the initial request is from 2014 onwards, with the effect that the records captured by the fresh request are the same as those captured by the original request. Accordingly, for the benefit of both parties, I am treating the application for review as an application to review the decision taken by the HSE on the initial request.
This review is therefore concerned solely with whether the HSE was justified in its decision to refuse, under section 15(1)(c) of the FOI Act, the request that the HSE accepted on 20 October 2023, for all records held relating to the applicant.
Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such a number of records, or an examination of such kind of the records concerned, as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.
Section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the FOI body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether the HSE was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). This Office takes the view that before a body can refuse a request under section 15(1)(c), the FOI body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
As set out above, following its acceptance of the applicant's request, the HSE informed the applicant's solicitors that there were 7 charts of records with an estimated 400 pages per chart and that it would be refusing the request unless it was limited. While I note that the HSE offered no suggestions as to how the request might be limited or any information that might facilitate such an exercise, the applicant's solicitors did not seek any advice as to how the request might be limited. Instead, noting the estimated volume of records involved, they chose not to refine the request based on their view that the request was not over burdensome on the HSE. As such, I accept, on balance, that the HSE offered to assist the applicant's solicitors in amending the request and that they were not willing to amend the request. Accordingly, I find that the HSE complied with the provisions of section 15(4) of the FOI Act in this case.
I will now proceed to consider the substantive issue of whether the HSE was justified in refusing the request under section 15(1)(c). In establishing whether a request would cause a substantial and unreasonable interference with, or disruption of, work of the FOI body, the number of records which need to be retrieved and examined and/or the kind of examination which is required are relevant. A range of factors may have a bearing on this issue, such as:
- The nature and number of the records covered by the request;
- The location(s) in which they are held or stored and whether these are readily identifiable;
- How the records are stored or filed and the relevant filing system;
- The tasks or steps necessary to search for, identify, locate, retrieve and examine the record;
- The nature and number of the relevant records to be examined;
- The length of time and the personnel required to do so;
- The length of time required to consider the records in order to determine their relevance to - the request and whether they are appropriate for release; and
- The size, staffing levels and works of the FOI body (including the relevant functional area) concerned.
It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area, and not necessarily on the basis of disruption of work of the body as a whole.
In its submissions to this Office, the HSE said the applicant is an active service user under its Mental Health Service. It said the applicant has eight charts of records. It said five of the charts contain between 400/500 pages and the remaining three charts contain between 200/300 pages. It said there are in excess of 3,000 pages at issue. It said the files are held within two named units and are in the main hard copy files with some records also held electronically. It said the search and retrieval work, examining records, redacting records, and preparing the decision could take in excess of 70 hours. It said that there is only one decision maker for the relevant Mental Health Service Office who works 50% as both the Standard Access Request (SARS) and Freedom of Information (FOI) decision maker and 50% in accounts.
Details of the HSE's submissions were provided to the applicant's solicitors. In response, the solicitors said that they subsequently reduced the request by way of letter dated 8 January 2024 and referenced the response received which indicated that their request was similar to the previous request. They said the initial request sought all records and that the subsequent request reduced that category significantly. They said that without any information regarding the period to which the charts relate they would be unable to meaningfully reduce the category sought. They further said that they would require guidance on how many pages is deemed acceptable as they have received bundles of records in excess of the number of pages previously and without having to involve this Office. They added that they have no difficulty with receiving the records electronically which, they argued, would reduce the workload significantly.
The Investigating Officer subsequently made further enquiries with the HSE about the nature and number of records involved. In response, the HSE said the applicant's record charts cover the following time periods:
- Chart 1 ranges from September 2014 to December 2015
- Chart 2 ranges from March 2017 to October 2019
- Chart 3 ranges from November 2019 to May 2021
- Chart 4 ranges from June 2021 to August 2022
- Chart 5 ranges from January 2023 to June 2023
- Chart 6 and 7 range from June 2023 to December 2023
- Chart 8 ranges from January 2024
The HSE again stated that the records were both manually and electronically held and that it was not simply a straightforward matter of carrying out an electronic search. It said that due to the nature of the records at issue, each page would have to be examined in contemplation of release as the records may contain third party information or other sensitive information not suitable for release.
My Analysis
Before I consider the HSE's submissions, I would note that in their submissions in response to the HSE's initial submissions, the applicant's solicitors did not challenge the HSE's position that the processing of the request would cause a substantial and unreasonable interference with work of the HSE. They did, however, argue that the initial request had been refined by confining the request to records from 2012 onwards and that they would be prepared to accept the records electronically. As I have outlined above, all of the records coming within the scope of the original request date from 2014 onwards, which means that the request made on 8 January 2024 did not alter the scope of the original request in any way. Moreover, the HSE has explained that many of the records are held in hard copy so the offer to accept the records electronically did not reduce the estimated time that would be required to process the request.
I should say that is highly unusual for this Office to be asked to review a refusal of a request for personal records under section 15(1)(c). Such reviews generally involve requests for non-personal records. It seems to me that this is due to the fact that most bodies invariably endeavour to grant requests for personal information in so far as is reasonably practicable. Nevertheless, section 15(1)(c) does not distinguish between personal and non-personal requests. As such, I accept that it is open to an FOI body to refuse requests for personal information under section 15(1)(c) provided the requirements of the section are met.
Determining whether the processing of a request would cause a substantial and unreasonable interference with, or disruption of, work of an FOI body, necessarily requires the particular facts of the specific case to be examined. For example, the number of records at issue that might trigger the application of section 15(1)(c) will vary from case to case and will depend on a variety of factors such as the size of the body or the particular functional area charged with processing the request. The Act is therefore understandably silent on the number of records that might give rise to a refusal under the section or on the level of resources required that might be deemed to constitute unreasonable interference with, or disruption of, work.
It is worth noting however, that the FOI Act and associated Regulations provide that an FOI body cannot charge search and retrieval fees for processing requests for non-personal information where processing the request would take less than five hours. This is an express acknowledgement of the fact that an FOI body must reasonably expect to expend a certain minimum level of resources on processing a request. As such, it seems to me that an FOI body would not be justified in relying on section 15(1)(c) to refuse a request based solely on the inadequate level of resources available to the particular unit charged with processing the request. The processing of requests under the Act is a statutory function of FOI bodies and as such, I would expect FOI bodies to ensure that the FOI function is adequately resourced. In the circumstances, I am not persuaded that the quite limited FOI resource available to the particular Mental Health Service Office within the HSE provides a basis, of itself, for refusing the request in question under section 15(1)(c).
Nevertheless, this is not the HSE's primary argument. In essence the HSE's concerns relate to the time that would be required to examine each and every page of the approximate 3,000 records held to determine if they were appropriate for release in accordance with the provisions of the FOI Act. It noted, for example, that the records are of a type that may contain third party information or other sensitive information not suitable for release.
The records at issue in this case comprise the applicant's mental health records. As the HSE stated, the records may contain third party information or other sensitive information not suitable for release. The experience of this Office is that such records are highly likely to contain at least some potentially exempt information and are certain to require examination to ensure that such potentially exempt information is identified and considered for release or redaction, as appropriate. Such an exercise will undoubtedly require the examination of all of the records at issue, of which there are in the region of 3,000 in this case. The HSE 's estimation of the time that would be required to process the request, at in excess of 70 hours, suggests an examination rate of in excess of 40 pages per hour. This is not an unreasonable estimate in my view and if anything, may be somewhat conservative.
The issue I must consider, therefore, is whether the requirement to expend in excess of 70 hours to process a single request would cause a substantial and unreasonable interference with, or disruption of, work of the particular Mental Health Service Office. In my view, it would. Section 15(1)(c) of the Act is an express acknowledgment of the fact that there are limits to the resources a public body must expend on a request. The FOI Act seeks to strike a balance between ensuring access to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources.
It is worth noting that section 27 of the Act, which provides for the charging of search and retrieval fees when granting requests, also provides for the refusal of a request where the cost of search and retrieval is likely to exceed a certain specified limit, currently €700. Search and retrieval costs are calculated at the rate of such amount per hour as stands prescribed in respect of the time that was spent, or ought to have been spent, by each person concerned in carrying out the search and retrieval efficiently. The current prescribed rate is €20 per hour. In other words, if the time spent in searching for and retrieving records is likely to exceed 35 hours, the request can be refused.
I fully accept that the Act does not contain such specific limits when an FOI body is considering the refusal of a request under section 15(1)(c). However, the ability to refuse a request under section 27 where time spent in searching for and retrieving records exceeds 35 hours does, in my view, give an indication of what the relevant Minister considered to be an unreasonable amount of time to spend on a request when the relevant Regulations were introduced. The HSE's estimate of the time that is likely to be required to process the request in this case is double that limit.
In the circumstances of this case, I am satisfied that the time and resources that would be required to retrieve and examine approximately 3,000 pages of records in order to process the applicant's request would cause a substantial and unreasonable interference with, and disruption of, the work of the relevant Mental Health Service Office. Accordingly, I find that the HSE was justified in its decision to refuse the request under section 15(1)(c) of the FOI Act.
I appreciate that the applicant will be disappointed by this decision. That disappointment is all the more understandable in circumstances where the records at issue comprise records of his own personal medical care and treatment. However, my review in this case is necessarily confined to the decision made by the HSE to refuse his request under section 15(1)(c) of the FOI Act. It is important to note that it remains open to the applicant to submit a refined request to the HSE. If he wishes to do so, I would strongly suggest that both parties enter into meaningful discussions as to how such a refined request might be framed with a view to meeting the aims of the applicant to the maximum extent possible whilst simultaneously ensuing that the HSE has the capacity to process the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse, under section 15(1)(c) of the FOI Act, the applicant's request for all records held by the HSE's Mental Health Service relating to him.
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