Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147952-K2V6R and OIC-147955-H7V3X6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147952-K2V6R and OIC-147955-H7V3X6
Published on
Whether the HSE was justified in refusing the applicant’s requests under sections 15(1)(i)(i) and (ii) of the FOI Act on the basis that the records sought were available to her, as they had already been released to her under FOI and/or that she was acting in concert with a previous requester
6 February 2025
The applicant in these cases is a staff member of the HSE who has made a number of requests to her employer seeking access to various records relating to her. She has been represented in some of her interactions with this Office by a third party.
In a request dated 4 December 2023, the applicant made four FOI requests to the HSE. In OIC Case 147955, the applicant sought access to all records from July 2023 to the present date to and from the County Manager, the Business Manager, the Primary Care Manager and the Head Manager Primary Care relating to her, sent to a specified HSE Occupational Health Services and from two named occupational health consultants to the same HSE Occupational Health Department (HSE Reference 009).
In OIC Case 147952, the applicant sought access to all records, including correspondence, notes, recordings, telephone notes and electronic records relating to her from July 2022 to the present date, to and from a specified HSE Occupational Health Physician and the following individuals: a HSE business manager, Head of Primary Care, Manager of Primary Care; and correspondence from a named HSE Occupational Health Consultant to a HSE County Manager, Business Manager, Primary Care manager and the Head of Primary Care (HSE Reference 010).
As OIC Cases Nos. 147955 and 147952 concern the same applicant and FOI body and were refused under the same provision of the FOI Act, I have decided to deal with them both in one composite decision.
The HSE did not issue an original decision in relation to either request and on 9 February 2024, she made an internal review request on foot of a deemed refusal in each case.
In a decision dated 28 March 2024, the HSE refused both requests under sections 15(1)(i)(i) and (ii) of the FOI Act. On 4 April 2024, the applicant applied to this Office for a review of the HSE’s decision in both cases.
During the course of these reviews, I asked the applicant’s representative to clarify whether the applicant no longer had access to records previously released under FOI or whether she believed that additional relevant records should exist. While his response indicated that additional relevant records were outstanding which were not provided to her, no details were provided as to why she believed this, or what these records were.
In the absence of any further details from the applicant, I sought submissions from the HSE in relation to its decisions in these cases. I subsequently wrote to the applicant, outlining the HSE’s position and invited her to comment. The deadline for a reply has now passed and no response has been received from the applicant to date.
I have now completed my reviews in accordance with section 22(2) of the FOI Act. In carrying out my reviews, I have had regard to the applicant’s application for review and correspondence with this Office, and to the HSE’s submissions. I have decided to conclude these reviews by way of a formal, binding composite decision.
In my request for submissions in relation to case 147955, I asked the HSE to explain the basis on which it concluded that the requester was acting in concert with a previous requester (section 15(1)(i)(ii) refers). I noted that in its decision in that case, it referred to records having been released to the applicant via her solicitor. I indicated to the HSE that, in my view, generally speaking, requests made by a solicitor on their client’s behalf would not necessarily fall within the description of a requester acting in concert with another individual. In its response, the HSE acknowledged my comments and indicated its view that the records sought were available to the applicant as they had been previous released to her and/or her solicitor. It made no arguments in relation to the application of section 15(1)(i)(ii). Accordingly, I am proceeding on the basis that the HSE is no longer relying on section 15(1)(i)(ii) of the FOI Act.
Accordingly, this review is solely concerned with whether the HSE was justified in refusing the applicant’s requests for access to various records relating to her under section 15(1)(i)(i) of the FOI Act on the basis that the records sought were available to her, as they had already been released under FOI to her or to her solicitor.
Before I consider the substantive matters in this case, I would like to make some preliminary comments.
Firstly, I note that the applicant contacted this Office during the course of this review, and explained some of the background as to why she was seeking the records at issue. As the applicant has been informed, it is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the records in question.
Secondly, the applicant expressed concerns about an individual within the HSE that made the decision on her FOI requests. As she is aware, 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.
The HSE contended that it has already granted access to the records sought and that it was justified in refusing to release further copies thereof, further to section 15(1)(i)(i) of the FOI Act. Section 15(1)(i)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned.
The HSE’s submissions
In its submissions to this Office, the HSE stated that it was satisfied that all records held relating to the applicant had been considered in the processing of her FOI requests. It stated that Occupational Health records from 1999 onwards are stored digitally on a system called ‘Informa’ and that, following digital searches of this system, all relevant records held on Informa had been released to the applicant. The HSE also said that all correspondence received by HSE Occupational Health are placed on the relevant staff member’s current Occupational Health file. It stated that it holds two current active files relating to the applicant in this case due to the number of records involved. It also stated that the managers named in the requests were contacted to ensure that all correspondence they held was also held on the applicant’s file and that no further records were located following this cross-referencing exercise.
The HSE stated that the applicant made a number of FOI requests seeking records held by HSE Occupational Health including requests made on 27 April 2009, 9 June 2016 and 30 April 2019.
During the review, the HSE provided a copy of the requests received from the applicant and her solicitor since 2022 to this Office, as well as copies of records schedules listing the records released in response. It stated that the applicant made an FOI request on 24 February 2022, seeking access to any records relating to her from 1999 to present, held at a specified Health Centre, the HSE Central Office, the Occupational Health Department, the HSE Office on Adelaide Road, HSE HR Department, the HSE Workplace Health and Wellbeing Department, the Office of the Chief Officer of HSE, the Office of the Director General of HSE, the office of the HSE National Director of Human Resources, and a specified HSE Primary Care office. I understand that records were released in response to that request, and that following its internal review decision in that case, 262 additional records were located and released to the applicant on 3 October 2022.
The HSE also stated that the applicant made a request on 9 November 2022 for access to records relating to her held by the HSE Occupational Health Department. It stated that it granted this request in full on 30 November 2022, wherein it released 96 pages.
The HSE also referred to another request made by the applicant on 7 February 2024, seeking that “any and all occupational notes, records and correspondence” relating to her be released to her solicitor. The HSE stated that while the applicant was seeking access to records from 1 February 2013, that all records from that date up to 1 December 2022 had already been released to her under FOI. It refused access to these records under section 15(1)(i)(i) and (ii). The HSE also noted in its decision that the remaining records sought comprised documents sent to its Occupational Health Service by the applicant, or responses she received from that Service. Nevertheless, while it stated that these records were in her possession, it had decided to release them (in part) under FOI. It enclosed a copy of its decision letter part granting her request, as well as a records schedule listing 74 pages released subject to the redaction of third party personal information under section 37 of the FOI Act.
The HSE stated that the request from the applicant’s solicitor covered a timeframe from February 2013 to 7 February 2024, which would include the same timeframe as set out in the applicant’s requests in the cases under review i.e. July 2023 to Dec 2023 (OIC Case No. 147955) and July 2022 to Dec 2023 (OIC Case No. 147952). The HSE’s position, essentially, is that the applicant and her solicitor have made overlapping requests for the same records, and that that all relevant records have already been released to her or to her solicitor and are available to her.
The applicant’s position
On 16 September 2024, I contacted the applicant’s representative, and asked him to confirm whether the applicant had received records with the HSE's decisions on her earlier requests in December 2022 and February 2024, and whether they were still available to her.
I also asked him whether the applicant believed that additional records should exist relating to her requests made in December 2023 which were not included in the records released in December 2022/February 2024 and to provide details of any such additional records she believed to exist.
In the representative’s response on the same date, he stated that the applicant had made five FOI requests to the HSE in December 2023, which to date all “remain outstanding”. He also stated that the applicant had confirmed to him that “additional records/documents” in relation to the HSE’s decisions in December 2022 and February 2024 were “still outstanding for a considerable time to date which were not provided to her”.
On the following day, I asked the representative to provide more details as to the records the applicant believed to be outstanding. I asked him to specify whether she considered certain categories of records to have been withheld or whether she believed records to exist which were created on certain dates, or held by certain individuals which were not released. I stated that the more details he could provide the better, and that it seemed to me that the applicant was best placed to identify or describe the records she believed to be held by the HSE relating to these two requests which were not already been released. In response, he stated that the applicant “had not been provided with documentation” in relation to the two cases under review in this decision, as well as two other FOI requests made in 2022 and 2023. He provided no other details in this regard.
As set out above, details of the HSE’s submissions to this Office were put to the applicant for comment during this review, but no response has been received.
Analysis
The HSE has refused the requests in these cases on the basis that the records sought have already been released to the applicant or to her solicitor under FOI and are available to the applicant. Although the applicant has stated that records are “still outstanding”, she has not expressly disputed that the HSE released records to her or to her solicitor in response to FOI requests made in December 2022 or February 2024. Neither has she argued that any records previously released are not currently available to her. Accordingly, it seems to me that the only matter under consideration is whether additional relevant records exist that were not already released to the applicant or to her solicitor in response to previous FOI requests. The HSE’s position is that all relevant records have previously been released. The applicant appears to be of the view that additional relevant records exist which were not released, but has provided no substantive information as to the basis for her belief in this regard.
In the circumstances, I am satisfied that the HSE has provided adequate evidence in support of its decision to refuse the applicant's requests in these cases. In the absence of any substantive argument or evidence to the contrary, I find that the HSE was justified in refusing, under section 15(1)(i)(i) of the FOI Act, the applicant's requests for records relating to her on the basis that the records sought had previously been released to the applicant or her solicitor and were available to her.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decisions in both cases. I find that it was justified in refusing the applicant’s requests under section 15(1)(i)(i) of the FOI Act on the basis that the records sought had previously been released to the applicant or her solicitor and were available to her.
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