Decision
Ms. X & Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-148635-V0N6B7
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and Irish Legal Information Institute
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URL: http://www.bailii.org/ie/cases/IEIC/2024/148635.html
Cite as: [2024] IEIC 148635
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Whether the HSE was justified in refusing an application made under section 9 of the Act for the amendment of certain records on the ground that the application for amendment should have been directed to the authors of the records
29 November 2024
By letter dated 23 January 2024 addressed to the Occupational Health Department of the HSE, the applicant sought, under section 9 of the FOI Act, the amendment of what are essentially two copies of the same email sent by the HSE's National Ambulance Service concerning its engagements with the applicant's union representative. She said the email contradicts an email she received from her union. She said the emails should be amended "by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate".
On 19 February 2024, the HSE's decision maker within the Occupational Health Department informed the applicant that she could not amend any of the emails referenced by the applicant as they were not sent by that Department. She suggested that the solution may be to contact the people who wrote the emails and request the amendments through that channel.
On 4 March 2024, the applicant sought an internal review of the HSE's refusal of her application for amendment. On 21 March 2024, the same decision maker informed the applicant that as the Occupational Health Department could not process the applicant's request, it could not process her application for internal review. She again reiterated that the applicant should submit her application for amendment to the person or service where the email originated. On 20 April 2024, the applicant applied to this Office for a review of the HSE's decision.
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 to date by the applicant and by the HSE. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in its decision to refuse to amend the records identified by the applicant.
The HSE's treatment of the application for amendment in this case was very poor and fell well short of the standards one might expect that has been subject to FOI legislation since its introduction in 1998. The HSE failed to comply with even the most fundamental provisions for processing requests.
First and foremost, section 9 of the FOI Act provides for the right of amendment of incomplete, incorrect or misleading personal information in any and all records held by an FOI body and there is no provision in the Act that requires an application for amendment to be processed/considered by the authors of the records. Moreover, the fact that the applicant may have addressed the application for amendment to a part of the HSE that does not have specific responsibility for processing the particular application does not provide a basis for refusing the application or for refusing to even consider the application. Responsibility for processing applications for amendment made under section 9 of the Act rests with the HSE as an FOI body and the appropriate course of action to follow would have been for the recipient of the application for review to forward it to the relevant part of the HSE for processing.
Secondly, the decision failed to comply with the requirements of section 9(4) which provides that a decision to refuse an application for amendment must include particulars of rights of review and appeal under the Act in relation to the refusal and the procedure governing the exercise of those rights and any time limits governing such exercise.
Thirdly, under section 21(3) of the Act, an application for internal review must be considered by a staff member of higher rank than the original decision maker. This did not happen in this case.
In its communications with this Office, the HSE acknowledged that errors had been made in processing the request and it was unsure as to why the application for amendment was not passed on to the relevant part of the HSE. It said "CH08" was the relevant part of the HSE that should have processed the application and that if the applicant was willing to make a fresh section application to CH08 it would be properly considered.
Having regard to the above, I find that the HSE was not justified in refusing the applicant's application under section 9 for the amendment of the records in question. However, I do not consider it appropriate to simply direct the amendment of the records without any consideration having been given by the HSE as to whether or not the records at issue should be amended, nor is it appropriate for this Office to act as a first-instance decision maker on this matter. Accordingly, I consider that the most appropriate course of action to take is to annul the HSE's decision and to direct it to make a new decision on the application for amendment, in accordance with the provisions of the FOI Act. The applicant will have a right to internal review, and a review by this Office if she is not satisfied with the new decision.
I would add that it is my strong view that before the application is processed afresh, it would benefit both parties to engage on the precise nature of the application for amendment made because, as it stands, it is not apparent to me that the application is sufficiently clear to allow the HSE to identify precisely what it is being asked to consider. I would suggest that the applicant should be invited to identify the precise nature of the personal information that she believes to be contained in the records at issue and that she considers to be incomplete, incorrect or misleading. She should be invited to explain why and how she considers that information to be incomplete, incorrect or misleading, and to specify the precise amendment(s) sought. She should also be invited to provide evidence to support her assertion that the personal information identified is, in fact, incomplete, incorrect or misleading.
Finally, I note that the HSE should be well aware of the various resources available to it on the website of the Central Policy Unit of the Department of Public Expenditure, NDP Delivery, and Reform ( http://www.foi.gov.ie/ ) that are of significant assistance in terms of ensuring that FOI requests are properly processed, including an FOI processing manual and the Code of Practice published by the Minister to which public bodies must have regard. I expect the HSE to take measures to ensure that all future requests and applications for amendment under section 9 are processed in accordance with the provisions of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision to refuse the applicant's application under section 9 of the FOI Act to amend certain records. I direct it to conduct a fresh decision-making process on the application for amendment.
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