Decision
Mr Z and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-152750-M8X2C9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152750-M8X2C9
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records other than those already released relating to an incident involving the applicant at work and to his applications under the Serious Physical Assault Scheme and the Occupational Injury Grant scheme
13 January 2025
In a request dated 20 June 2024, the applicant made a request seeking access to his employee file since joining the HSE as a member of nursing staff, as well as email correspondence and supporting documents relating to his applications under the Serious Physical Assault Scheme and the Occupational Injury Grant scheme following an incident involving himself and a patient. He also asked some questions on the handling of the HSE’s reporting of the incident and how his leave arrangements were determined.
On 18 July 2024, the HSE decided to release the applicant’s employee file to him, with some third-party personal information redacted. It released the National Incident Management System (NIMS) form completed retrospectively after the incident. It also released the Health and Safety Authority report, email correspondence from a named Assistant Director of Nursing (ADON) specified in the applicant’s request, and correspondence between the ADON and Occupational Health. It informed the applicant that the complete supporting documentation for the applicant’s scheme applications are the NIMS form, the scheme application forms, and the Occupational Health referral. It said that all of these documents had been released to the applicant on foot of this and a previous FOI request. Additionally, it provided brief answers to the questions in the applicant’s request on how it handled the reporting of the incident and the applicant’s leave arrangements.
On 26 July 2024, the applicant sought an internal review request of the HSE’s decision. He said he had not received some of the records he had sought in his two requests. He subsequently confirmed that he was seeking an internal review of the request made in June only. On 16 September 2024, the HSE issued its internal review decision wherein it affirmed its original decision on the request. It said all records relevant to the request had been released.
On 10 October 2024, the applicant applied to this Office for a review of the HSE’s decision on the ground that it had not provided copies of all relevant records. During the course of this review, the HSE located additional records of email correspondence between the ADON and Occupational Health and released them in full to the applicant. The Investigating Officer subsequently provided the applicant with details of the HSE’s submissions to this Office, including details of the searches undertaken to locate the records sought, and invited him to make further submissions in the matter. No such further submissions have been received to date.
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 the applicant and the HSE as set out above and to the communications between this office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
The HSE’s position is that, following the release of additional records during the course of the review, no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a), to further records falling within the scope of the applicant’s request.
In his submissions to this Office, the applicant raised some concerns about how the incident was documented by the HSE, the fairness of how his applications for the Serious Physical Assault Scheme and the Occupational Injury Grant scheme were handled, and how the dates of his period of leave were determined. It is important to note that the role of this Office is not to adjudicate on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role is confined to reviewing the decision taken by the FOI body on the applicant’s FOI request for records.
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 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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for 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.
In its submissions to this Office, the HSE said all its staff are guided by the National Record Retention Policy and the Electronic Communications policy. It provided this Office with copies of both for reference. In terms of the records referenced in the applicant’s request, the HSE said that these policies were adhered to. It said that hard copy files are held by the FOI administrator and all communication between the ADON and the Deputy Service Manager (DSM) was via email or face to face. It said that in line with policy, no records relating to the request would have been destroyed.
The HSE said searches for records relating to the request were carried out in the ADON’s office and emails, the DSM’s office and emails, the Allocations Office and emails, and the NIMS system. It added that all relevant individuals were consulted and advised that everything they received and sent is accounted for in what has been released to the applicant.
In his submission to this Office, the applicant said he did not receive all the supporting documentation sent by the ADON to the DSM in relation to his Serious Physical Assault Scheme application. In its submissions, the HSE said there is no further supporting documentation other than what was found in the searches and released to the applicant under a previous request, i.e. the NIMS form, the scheme application form, and the Occupational Health referral. It said there was only one NIMS form completed and this was done in retrospect on 27 March 2024. It said that the Allocations staff did not complete NIMS form when the applicant phoned in sick on 3 March 2024 as this would not be their responsibility.
The HSE said there was a face to face conversation and review of the application. When the Investigating Officer asked the HSE if there were any records of this conversation and/or review, the HSE responded by saying that it does not hold a written record of these. It explained that the purpose of the conversation was to determine whether the applicant met the criteria for the assault scheme. It said that, after meeting with the applicant, it was determined that applying for the Injury Grant scheme would be more appropriate.
The applicant also contended that he did not receive all the supporting documentation sent by the ADON to the DSM in relation to his Injury Grant scheme application. He also said there should have been a witness report released to him as this was referred to on the scheme application. The applicant provided a copy of the application form in his submission to this Office which included a handwritten note saying that there was a witness report in the NIMS. The HSE responded to this point by saying that the Injury Grant application form, the NIMS form, a retrospective Record of Accident/Incident and Near Miss Investigation form were the only documents sent by the ADON to the DSM in relation to the Occupational Injury Grant. The HSE stated that all these documents have been released to the applicant under a previous request. In terms of the existence of a witness report, the HSE said that the ADON should have written ‘NIMS form attached’ instead of ‘witness report in NIMS’ on the Injury Grant application form. It said that the witness report section was not completed in the NIMS form because the staff members who were present at the time of the incident did not state that they witnessed an assault on the applicant. The HSE stated that an email with a recollection of events was sent to from Allocations to the ADON and that this was released to the applicant under his FOI request.
Furthermore, the applicant stated that he believed that the NIMS form he received had been edited, leading to discrepancies. He stated there was evidence on the form of different handwriting. The Investigating Officer put this to the HSE and asked if there was more than one version in the history of the form released to the applicant. The HSE responded by stating that there is only one NIMS form associated with this case to date. It said that the form was not amended, there is only one version of the form, and that there is no evidence of different handwriting. The HSE noted that some of the text on the form does appear to be darker, but it attributed this to the author making their handwriting clearer. The HSE provided this Office with a copy of the NIMS form released to the applicant for the purpose of this review.
As noted above, during the course of this review, the HSE identified two further email communications between the ADON and Occupational Health. The HSE decided to release a copy of these emails in full to the applicant on 20 December 2024, and it provided a copy to this Office for the purpose of this review.
For an FOI body to be entitled to rely on section 15(1)(a) of the FOI Act to refuse access to further records, it does not have to be certain as to the existence or otherwise of relevant records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. As such, the question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records in this case.
Having regard to the explanation given by the HSE as to why no further relevant records exist or can be found and to the details of the searches actually undertaken, and in the absence of evidence to suggest that further relevant searches might be warranted, I am satisfied that the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that it was justified in refusing, under section 15(1)(a) of the Act, access to any further relevant records other than those already released.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI, to any further records falling within the scope of the applicant’s request other than those already released, having taken all reasonable steps to ascertain their whereabouts.
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