Decision
Mr and Ms T and Cheshire Ireland
From Office of the Information Commissioner (OIC)
Case number: 140191
Published on
From Office of the Information Commissioner (OIC)
Case number: 140191
Published on
Whether Cheshire Ireland was justified in its decision to refuse access to further records relating to the applicants sent or received by two named members of staff under section 10(1)(a) of the FOI Act on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
5 November 2014
The applicants made a request on 15 April 2014 to Cheshire Ireland for access to "any messages, emails, directives or any other form of electronic data" related to them sent or received by two named members of staff from November 2013 to the date of the request. On 21 May 2014 Cheshire Ireland released a number of records to the applicants on foot of the request. The applicants were not satisfied that they had received all records and requested an internal review of this decision on 13 June 2014. In its internal review decision of 8 July 2014 Cheshire Ireland upheld its original decision and the applicants subsequently applied to this Office for a review on 23 July 2014.
I note that Mr David Logan of this Office informed the applicants by letter dated 17 September 2014 of his preliminary view that the decision of Cheshire Ireland was justified. The applicants did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to Cheshire Ireland's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and Cheshire Ireland, and to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
This review is concerned solely with the question of whether Cheshire Ireland was justified in its decision to refuse access any further sent or received by the two named staff members during the period from the beginning of November 2013 to 15 April 2014 on the basis that all requested records have been released to the applicants on foot of the original request and no further records exist.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if 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 cases such as this is to review the decision of Cheshire Ireland 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 Cheshire Ireland, on the basis of which the Cheshire Ireland concluded that the steps taken to search for records were reasonable. The Office's understanding of its 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 this Office's website,www.oic.ie).
In a submission to this Office Cheshire Ireland outlined the searches carried out to locate the records sought by the applicants and I outline details of these searches below. It should be noted that while the request related to records sent or received by two named individuals, Cheshire Ireland carried out searches for records related to the original request which may have been held by other staff members in the organisation and any records located during the course of these searches have also been released to the applicants.
After receiving the applicant's FOI request two members of staff of Cheshire Ireland met to establish the following:
Subsequently the Head of Human Resources emailed search and gathering instructions to 12 individuals, including the two named staff members identified in the applicant's request. The email recipients were instructed to search their hard copy, soft copy, email and filing systems and provide copies of any data or information they had pertaining to the applicants such as but not limited to the following:
Additionally instructions were given both verbally and in writing to the named staff members to search their files and emails using the applicants full first names, full last names, their initials, address and email addresses. The email recipients were instructed to provide copies of the records they had gathered by registered post (as it was personal data) or deliver it by hand to the Head of Human Resources by a set date. The persons who were requested to search and gather records were required to carry out searches manually in their offices and to search their email accounts, computers and laptops by using the search function. Cheshire Ireland stated that it does not have an IT department and the only method available to the organisation and its employees when searching and gathering information is to do so manually in the case of files and by using the search function in the email/computer system.
Following receipt of the applicants request for internal review a number of staff, including those identified by the applicants in their original request, were requested to reconduct the searches of the Greystones filing systems which Cheshire Ireland have stated contain files on each person which it provides services to. These files are known as client files and exist in every Cheshire Ireland location and can include items such as letters from the HSE, the client's medical practitioners, budget related information and service agreements. Further searches were also carried out in their email accounts, their computer, their laptop and their own offices for any records which may have inadvertently been omitted. In its submission Cheshire Ireland stated that it was made clear to all staff that failing to comply with FOI requests is taken very seriously by the organisation and that failing to comply with a request and withholding of information would be considered a very serious disciplinary matter.
In a submission to this Office of 21 August 2014 the applicants referred to a number of specific records which they maintain are held by Cheshire Ireland that have not been released to them, including copies of complaints made against the applicants and an email from a named individual concerning one of the applicants sent during the period 5 - 14 February 2014. However the position of Cheshire Ireland is that it has released all records sought by the applicants on foot of their original request and it holds no further records in relation to this request.
The applicants also refer to a complaint which had been forwarded to HIQA in June 2014. To be clear, any records created since the date of the applicants original FOI request, dated April 2014, are outside the scope of this review. In their submission to this Office the applicants also refer to a "daily communications book", in which staff write their observations. While I consider the "daily communications book" to be outside the scope of the applicant's FOI request, I note that it is Cheshire Ireland's position that the book is actually a sheet and copies with any references to the applicants have been provided to them.
In conclusion the position of Cheshire Ireland is that it does not hold or cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by Cheshire Ireland to locate the records and it's responses to this Office, I am satisfied that it has taken all reasonable steps to locate all relevant records. Accordingly I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Cheshire Ireland 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.
Stephen Rafferty
Senior Investigator