Decision
Ms. X and St. Vincent's University Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-149973-Y6H9W6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149973-Y6H9W6
Published on
Whether SVUH was justified in refusing, under section 15(1)(c) of the FOI Act, the applicant’s request for certain records in which she is mentioned or discussed
17 September 2024
In a request dated 21 February 2024, the applicant, an employee of St. Vincent’s University Hospital (SVUH), submitted a request for all personal records (excluding medical records), all correspondence from February 2021 between certain Sections of SVUH in which the applicant is mentioned or discussed, copies of the advertisements, job descriptions, and person specifications for two specified positions advertised in 2022 and 2023, and all records relating to the creation of a specified role.
On 21 March 2024, SVUH notified the applicant that it was extending the period for considering the request by four weeks under section 14(1)(a) of the Act. On 19 April 2024, it issued a decision wherein it decided to part-grant the request. It withheld certain third party information from some records under section 37(1). It also said it had decided to refuse that part of the request that sought all correspondence from February 2021 between certain Sections of SVUH in which the applicant is mentioned or discussed under section 15(1)(c) as the number of emails located during searches was too large to process.
The applicant sought an internal review of that decision on 15 May 2024. On 7 June 2024, SVUH varied the original decision and released a number of additional records coming within the first part of her request. It affirmed the decision to withhold certain information and to refuse part of the request, under sections 37(1) and 15(1)(c). It also informed the applicant that it was open to her to refine the parameters of her original request and make a fresh request.
On 20 June 2024, the applicant applied to this Office for a review of SVUH’s decision. In her application, she questioned the adequacy of the searches undertaken and suggested that further relevant records exist. She also sought a review of the decision of SVUH to refuse part of her request under section 15(1)(c). She made no reference to the information SVUH redacted under section 37(1).
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 between SVUH and the applicant as set out above, to the applicant’s comments in her application for review, and to the submissions made by SVUH in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
As I have outlined above, the applicant suggested in her application for review that additional relevant records exist. In circumstances where SVUH has refused part of the request under section 15(1)(c), I do not consider it appropriate or, indeed, feasible to consider the adequacy of the searches undertaken as it is quite possible that any such records the applicant believes to exist may fall within that part of the request the SVUH refused under section 15(1)(c).
Accordingly, I have confined the scope of this review to the question of whether SVUH was justified in refusing, under section 15(1)(c) of the Act, the applicant’s request for all correspondence from February 2021 between certain Sections of SVUH in which the applicant is mentioned or discussed.
I note that in both her application for internal review and in her subsequent application for review to this Office, the applicant said she believed that the decision of SVUH to extend the period for considering the request by four weeks was not warranted. In the notice informing the applicant of the extension, SVUH informed the applicant of her right to apply for a review by this Office of that decision within two weeks of the date of the notification. The applicant did not apply for a review of that decision. Accordingly, the decision to extend the period does not form part of this review, although I note that SVUH identified a very significant volume of records that potentially fell within the scope of that part of the request that was subsequently refused under section 15(1)(c).
Section 15(1)(c) provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of the body (including disruption of work in a particular functional area).
However, Section 15(4) provides that a request cannot be refused under Section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. Accordingly, before I can consider whether SVUH was justified in refusing the relevant part of the request under Section 15(1)(c), I must first consider whether it complied with the provisions of Section 15(4) before doing so.
The FOI Act is silent on the precise nature or level of the assistance to be offered under Section 15(4). This Office takes the view that before a body can refuse a request under Section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of Section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
When requesting submissions from SVUH in this case, the Investigating Officer drew SVUH’s attention to section 15(4) and queried whether it had assisted or offered to assist the applicant in amending the request so that it no longer fell to be refused under section 15(1)(c). In its submissions, SVUH provided no evidence to suggest that it had done so before refusing the request. Instead, it referred to the fact that it had informed the applicant in its internal review decision that it was open to her to refine the parameters of her original request and make a fresh request. It went on the explain that the applicant subsequently submitted a refined request on 20 June 2024 and it provided details of its engagements with the applicant in respect of that new request.
The question I must consider is whether SVUH complied with the provisions of section 15(4) before refusing the relevant part of the applicant’s request under section 15(c). I am satisfied that it did not. Accordingly, I consider that the most appropriate course of action is to annul the decision of SVUH to refuse the relevant part of the request under section 15(1)(c) and to remit the matter back to SVUH for a fresh decision. If SVUH remains of the view that the request is voluminous, it must first comply with Section 15(4) if it is to once again consider refusal of the request under Section 15(1)(c). If the applicant is not satisfied with the new decision made by the SVUH, the usual rights of review will apply. I would add, for the benefit of both parties, that the request as framed does, on its face, appear to be extremely broad and it seems to me that both parties might benefit from a discussion on the scope of the request before commencing a fresh consideration of the matter.
Having carried out a review under Section 22(2) of the FOI Act, I hereby annul the decision of SVUH to refuse, under section 15(1)(c) of the FOI Act, part of the applicant’s request for certain records in which she is mentioned or discussed, on the ground that it failed to first comply with the provisions of section 15(4). I direct SVUH 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.
Stephen Rafferty
Senior Investigator