Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-128220-S0S3P1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-128220-S0S3P1
Published on
Whether the HSE was justified under section 15(1)(a) of the FOI Act in refusing access to various records concerning funding applications by Kerry Parents and Friends Association (KPFA) in relation to the applicant
15 February 2023
All references to the applicant in this case can be taken to be relating to the applicant or her representative, as appropriate.
On 29 June 2022 the applicant made a request for records relating to all applications for funding made by KPFA in her name to the HSE, relating to the dates the applications were made and the amount of funding sought. The applicant also requested records containing the dates and amounts of allocations of funding made by the HSE to KPFA in her name. On 26 July 2022, the HSE issued a decision granting the applicant’s request. On 2 August 2022 the applicant requested an internal review of this decision on the grounds that only a small number of documents were released and she was of the view that additional records should exist. On 2 August 2022, the HSE varied its original decision and released additional records to the applicant. On 13 September 2022, the applicant applied to this Office for a review of the HSE’s decision. She noted that the records released by the HSE to date did not refer to applications for funding or the allocation of funding relating to Day services or respite care in particular.
During the course of this review, the HSE located and released additional records to the applicant. The applicant was of the view that further records should exist relating to her request. On 16 December 2022, the HSE released further records to the applicant which it stated were outside the scope of the applicant’s request. The applicant remains of the opinion that additional records relating to her request should exist. Her arguments were put to the HSE, which has made a number of submissions to this Office during the review.
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 the applicant and to the submissions made by the FOI body in support of its decision. I have also examined the records identified by the HSE. I have decided to conclude this review by way of a formal, binding decision.
The applicant maintains that additional records relevant to her FOI request should exist, while the HSE’s position is that it has released all relevant records. This is effectively a refusal to grant access to further records under section 15(1)(a) of the Act.
Accordingly, this review is solely concerned with whether the HSE was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant’s request, on the grounds that they do not exist or cannot be found.
In submissions to this Office, the applicant referenced certain concerns in respect of matters beyond the scope of the FOI Act. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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 the 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 the 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.
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.
Submissions by the HSE
During the course of this review the HSE released records to the applicant which included records already released to her in response to her request and additional records which related to her but which it considered to be outside the scope of her request. Its position is that no further records held by either the HSE or KPFA regarding funding applications relating to the applicant for the relevant time period exist or can be located.
By way of background, the HSE stated that it has a Service Level Agreement (SLA) with KPFA, which provides services on its behalf. It said that these services include day, residential and respite services as well as outreach supports. The HSE provided additional details regarding how the funding was reviewed and paid monthly to agencies such as KPFA.
Essentially, the HSE stated that new funding for an agency such as KPFA arises either when a young person requiring support leaves school and their needs are identified through an exit process; or when an emergency application is made for support funds. It stated that applications for emergency funding can include those made for existing service users whose needs have changed.
The HSE stated that before 2017, funding for day places was not individualised and agencies were given “bulk funding” to provide day services to a number of clients. The HSE stated that when a person moved or left the day service, the funding did not follow that person as the funds covered staffing for the agency. My understanding is that the staffing in place would then be used to accommodate another service user. The HSE also stated that during the period of 2007-2010, KPFA received funding to provide residential or day services for a specific number of places and that these places were provided to the people identified as requiring the service. It said that from 2010 onwards individual funding was applied for emergency cases and where the needs of the people being supported by the agency changed.
The HSE’s position is that there are no records relating to individualised applications for funding for the applicant other than records that have already been provided to her.
The HSE also provided this Office with a description of the searches it undertook to locate records relevant to the applicant’s request, details of which were provided to the applicant during the review. While I will not repeat its submissions in detail, I can confirm that I have had regard to the HSE’s correspondence with this Office and subsequent clarifications.
The HSE stated that funding applications are stored in both electronic and hard copy format. It said that all records regarding applications and allocations of funding are stored on a shared folder which is only accessible by the relevant HSE staff. The HSE said that a search of all records regarding applications and allocations of funding provided two records relating to the applicant’s request, which were provided to her by the HSE.
Essentially the HSE’s position is that it conducted reasonable searches for relevant records in this case but that no additional records were found. It stated that it carried out searches of hardcopy and softcopy files relating to funding applications held by the HSE and an external third party storage provider. It also stated that it used keyword searches using variations of the applicant’s name and initials when searching electronic files and that it searched the emails of named relevant individuals who were working in the HSE and KPFA during the relevant time period.
Following a request for clarification from this Office, on foot of the applicant’s view that additional records should exist, the HSE set out its view that the records requested by the applicant never existed. Essentially, the HSE’s position was that the only additional documentation which had been located, was created during the relevant time period and had not already been provided to the applicant was her school leaver file. During the course of this review, the HSE provided a copy of the applicant’s school leaver file to her, although it was of the view that this was outside the scope of her request.
Analysis
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. This Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that the applicant believes ought to exist have not been located. Furthermore, this Office does not generally expect public bodies to carry extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a body’s explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the records sought.
While I note the applicant’s belief that further records relating to her request should exist, it is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request or to continue searching indefinitely for records that cannot be found.
Having carefully considered the details of the searches provided by the HSE, and having regard to the HSE’s explanation concerning the lack of records concerning individualised funding during the relevant timeframe, I find that the HSE was justified in its decision to refuse access, under section 15(1)(a), to further records relevant to the applicant’s request on the grounds that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant’s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
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.
Sandra Murdiff, investigator