Decision
Ms S and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130248
Published on
From Office of the Information Commissioner (OIC)
Case number: 130248
Published on
Whether the HSE was justified in its decision to refuse access under section 10(1)(a) of the FOI Act to records in relation to social workers' contacts with the applicant in 1983 to 1986 on the basis that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
25 February 2014
In an undated letter the applicant submitted a request to the HSE for copies of any social work records relating to her for the years 1983 to 1986. In its decision dated 16 April 2013 the HSE decided that after carrying out exhaustive searches it did not hold any records coming within the scope of the request and refused to grant access on the basis of section 10(1)(a) of the FOI Act. The applicant requested an internal review of that decision on 18 August 2013 and on 23 August 2013 the HSE affirmed its original decision. On 4 October 2013 the applicant made an application to this Office for a review of the HSE's decision.
I note that Ms Anne O'Reilly of this Office was in contact with the applicant by telephone on 2 December 2013 and explained the searches carried out by the HSE in its efforts to locate any relevant records. She also advised the applicant of her preliminary view that the HSE was justified in its decision in accordance with section 10(1)(a) of the Act on the basis that no relevant records could be found. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to details of the submissions of the applicant and the HSE to this Office and to the decisions of the HSE. I have also had regard to the provisions of the FOI Act.
The scope of this review is concerned solely with the question of whether the HSE was justified in deciding that no records relating to the requester for the years 1983 to 1986 exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 10(1)(a) of the FOI Act provides as follows:
"(1) A head to whom a request under section 7 is made may refuse to grant the request if-
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"
The Commissioner's role in a case such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).
In her application to this Office the applicant stated that she was told by the Freedom of Information Officer in the HSE that some records had been found but they needed a further two weeks to complete the search. Ultimately the HSE in its decision said no records coming within the scope of her request had been found. On this basis she applied to this Office for a review. In a subsequent contact with this Office the requester asked whether the Letterkenny Office had been searched but she was unable to provide any reason for thinking that it might hold records relating to her.
During the course of this Office's review the HSE provided the following details of the searches carried out for relevant records:
• a search was carried out in the Social Work Department, in Galway, of their database under the requester's maiden name to identify if any records existed on her, or her parents; No records were found.
• A further search was carried out under the requester's married name which identified a file relating to a notification of child abuse received in 2009. This led to the identification of an earlier file, which commenced in 1985, relating to a sister and brother in law of the requester. These are the flies which were identified as being relevant to the request by the FOI Officer, but required to be examined to establish if the records contained information on the requester for the years 1983 to 1986. There was no file identified under the requester's own married or maiden name.
• When she made her request for Internal Review, the searches mentioned previously were undertaken again. As part of the Information Commissioner's review process a further examination of the Social Work file, which commenced in August 1985, was undertaken to ensure that no records relating to the requester were filed on that file. No information personal to the applicant was found.
• Any records on the file opened in 2009 do not come within the scope of this request which sought records created in the years 1983 to 1986; The 2009 file is the subject of a separate FOI request and where it is possible to extract any information relating to the requester, this will be made available to her.
• In addition, similar searches were carried out in the local Social Work Department in Oughterard, which would cover the Clifden area. No records were identified from these searches.
• There is no information on file, or information provided by the requester that would indicate any involvement by the Letterkenny Social Work Department relating to her in the years 1983 to 1986.
Following these searches the HSE concluded that no records, coming within the scope of the applicant's request, exist or could be found.
Having reviewed the steps taken to identify the records sought in response to the applicant's FOI request, I consider that the HSE was justified in concluding that no records which come within the scope of her request exist or can be found. Accordingly, I find that the decision of the HSE was correctly made in accordance with section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator