Decision
Mr Ken Foxe, Right to Know and Children's Health Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-154232-N7J6G9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154232-N7J6G9
Published on
Whether CHI was justified in refusing access, under section 15(1)(a) of the FOI Act, to records of spending associated with recruitment fairs/drives on the ground that no such records exist or can be found
5 March 2025
In a request dated 2 September 2024, the applicant sought a spreadsheet/database/record of line-by-line spending associated with travel to recruitment fairs or on recruitment drives by CHI in the period 1 January 2022 to the date of his request. The applicant requested this record to be broken down according to flights, accommodation, subsistence, transport, entertainments, and any other associated expenditure from setting up stands, publishing of promotion materials and other miscellaneous costs.
On 13 September 2024, CHI informed the applicant that his request would attract a search and retrieval fee of €120. In response, the applicant narrowed the scope of his request to records from January 2023 to 2 September 2024 in order to avoid the necessity for the search and retrieval fee. On 9 October 2024, CHI refused the applicant’s request under section 15(1)(a) of the FOI Act on the grounds that CHI does not hold records associated with travel to recruitment fairs or on recruitment drives for the period in question. On 15 October 2024, the applicant requested an internal review of CHI’s decision.
On 8 November 2024, as CHI did not issue its internal review decision within the allotted time, the applicant sought a review by this Office of CHI’s deemed refusal of his request. After engagement with this Office, CHI wrote to the applicant on 2 December 2024 and affirmed its original decision. CHI stated that the Head of Recruitment advised that there was no expenditure for flights, accommodation, subsistence, transport, entertainment or any other associated expenditure from attending recruitment fairs from January 2023 – September 2024. CHI said that it engaged an international recruitment agency to travel to the Middle East and India to recruit nursing staff for which travel expenses, accommodation, and other subsistence was covered by the agency for five staff to attend. CHI said it covered the cost of additional overtime worked by staff in line with the HSE travel policy.
On 4 December 2024, the applicant applied to this Office for a review of CHI’s decision. In his application, he stated that it is clear from the decision that costs were incurred through the engagement of the recruitment firm and by payment of associated expenses for staff members.
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 outlined above and to the submissions made by CHI during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether CHI was justified under section 15(1)(a) of the FOI Act in refusing access to records of spending associated with travel to recruitment fairs or on recruitment drives, as set out in the applicant’s request, from 1 January 2023 to 2 September 2024.
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. Our 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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 considering whether CHI holds relevant records in this case, I have also had regard to section 17(4) of the FOI Act. That section provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. If the reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. However, if the body does not hold a record containing the information sought and cannot search for and extract the information from electronically held records by taking reasonable steps, then that is the end of the matter. Where the search and extraction needed to collate or extract information requires an FOI body to go beyond reasonable steps, section 15(1)(a) can be relied upon to refuse a request i.e. that no relevant record exists having taken all reasonable steps to locate it.
CHI’s submissions
In its submissions to this Office, CHI said that it contacted its Human Resources and Finance Departments to ascertain what records exist. It said that its Finance Department responded advising that the request was not practical to fulfil as expense claims are not categorised by expense claim type in its financial records and that it would entail an extensive search of all staff expense claims/purchase order for flights and accommodation. The Finance Department advised they would, in the first instance, need a list of all recruitment drives for the relevant period. CHI said that its HR Department confirmed that CHI’s Central Recruitment did not travel to recruitment fairs or run recruitment drives in the period 1 January 2023 – 31 December 2023. It said that HR confirmed that there was no expenditure for flights, accommodation subsistence, transport entertainments or any other associated expenditure from attending recruitment fairs such as setting up stands, publishing of promotions materials, etc. CHI noted there was a recruitment embargo in the health services in 2023.
CHI said that it engaged an international recruitment agency to travel to the Middle East and India between 29 April 2023 to 7 May 2023 to recruit nursing staff, for which travel expenses, accommodation, and other subsistence was covered by the agency for four CHI staff to go on the trip to hold interviews(as noted above, CHI’s letter to the applicant dated 2 December 2024 said five staff). CHI said it covered the cost of additional overtime worked by CHI staff in line with the HSE’s travel policy and reimbursed any expenses incurred by staff e.g. meals. CHI said, in its view, that this is not relevant to the applicant’s request as this was by way of payment through salaries to staff and is not reflective of costs for recruitment drives.
CHI said it does not hold any records of a spreadsheet/database record of line-by-line spending for this recruitment trip, nor does it hold any purchase order numbers for flights or accommodation for recruitment drives in 2023. It said that the international recruitment agency managed the recruitment process. CHI said the agency organised flights, accommodation, and some subsistence for CHI employees to attend interviews. CHI stated that the recruitment agency does not bill CHI until the successful candidate has a permanent contract which can take 6-12 months. CHI said that to determine the cost of the international recruitment drive in May 2023, it would have to confirm how many of the successful candidates have taken up a permanent post and request the Finance Department to pull the invoice for each successful candidate for review. It said that the recruitment agency charge CHI a percentage of the salary of the successful candidate for the recruitment process. CHI said that extracting the information from the invoice would require creating a new record. CHI said the FOI Act does not require FOI bodies to create a record if none exists. CHI also said that if information was extracted from individual invoices, this would be exempt from release under section 36(1)(b) of the Act as it may be deemed commercially sensitive.
The Investigating Officer asked CHI if the period of January 2024 – 2 September 2024 was considered in the search for records and also if the recruitment agency was asked directly if it held any records relevant to the request. CHI responded by stating that it did not request data for 2024. It also said that it did not contact the recruitment agency to see if it holds any records relevant to the applicant’s request.
Finally, in its submissions to this Office, CHI said its Finance Department confirmed that three staff were reimbursed through its payroll for expenses which included transport, visa and meals. It said it had not established the costs in overtime. CHI reiterated that it does not consider the reimbursement of expenses through salaries to be reflective of the costs of the recruitment drive. CHI said that the ‘costs of the expenses for the staff who attended the international recruitment drive in 2023’ can be forwarded to the applicant if directed by this Office.
Firstly, I do not accept CHI’s argument that the expenses reimbursed via salary payments to CHI staff who attended the international recruitment drives is not reflective of its spending on recruitment drives. It is evident from CHI’s submissions that it holds at least some records relating to the applicant’s request, namely expenses reimbursed to those staff that attended the recruitment drive in 2023. Additionally, the cost of overtime paid to staff who attended any relevant recruitment fairs/drives is, in my view, also part of the costs associated with those recruitment processes.
Furthermore, while I note the recruitment agency charge CHI a percentage of the salary of the successful candidates, and that this cost is contained in an invoice for each successful candidate, it is unclear from CHI’s submissions whether any relevant information falling within the scope of the applicant’s request can be extracted electronically from CHI’s systems. It is not unreasonable in my view to expect that CHI would be able to evaluate the costs associated with recruiting staff through recruitment fairs/drives, including the cost of using recruitment agencies, if for example it was asked for this information by its Chief Executive. The question here is whether CHI can extract this information electronically in line with the requirements of section 17(4) of the Act. In my view, CHI has not adequately addressed this.
As noted above, CHI said that the recruitment agency organised flights, accommodation, and some subsistence for CHI employees to attend interviews. While I note the billing process described by CHI, the question also arises as to whether the recruitment agency may hold relevant records. Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. In it submissions to this Office, CHI said that the recruitment agency is a service provider. However, it appears that no attempt has been made to ascertain whether the recruitment agency holds any relevant records or can extract the information sought electronically.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on CHI to satisfy this Office that its decision to refuse access to the information sought was justified. In my view it has not done so. Given circumstances outlined above, I simply cannot find that CHI has undertaken all reasonable steps to ascertain the whereabouts of the information sought by the applicant in this case. Accordingly, I find that CHI was not justified in refusing the applicant’s request under section 15(1)(a) of the Act. I therefore direct CHI to make a fresh decision on the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul CHI’s decision to refuse the applicant’s request under section 15(1)(a) of the Act and I direct it to consider the request afresh.
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