Decision
Ms L and Health Service Executive Dublin Mid-Leinster ("the HSE")
From Office of the Information Commissioner (OIC)
Case number: 140008
Published on
From Office of the Information Commissioner (OIC)
Case number: 140008
Published on
Whether the HSE was justified in its decision to refuse access to records relating to the source of a complaint made to the HSE relating to the applicant's daughter under section 10(1)(a) of the FOI Act on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
28 February 2014
The applicant made a request on 19th April 2013 to the HSE for access to records which "provide the source contact that notified the HSE" of concerns in relation to her daughter. In its original decision the HSE informed the applicant that her request for records was being refused under section 26(1)(a) of the Freedom of Information Act. The applicant requested an Internal Review of this decision on 26th June 2013. In its Internal Review decision of 13th November 2013 the HSE upheld its original decision. However the HSE released a Social Work File to the applicant on December 19th 2013. This file contained a number of records; two of which contain information which has been redacted.
I note that Mr David Logan of this Office informed the applicant on 14th February 2014 of his preliminary view that the decision of the HSE was justified. The applicant 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:
The HSE released what it refers to as the Social Work File containing a number of records detailing the investigation carried out into the particular complaint to the applicant. Two records contained in this file hold information which has been redacted. The applicant raised queries with this Office with regard to the information that was being redacted however these records did not form part of the original request as they do not "provide the source contact that notified the HSE" of the complaint. Therefore they do not fall within the scope of this review.
In a submission to this Office the applicant referred to contacts made between a hospital and a creche in relation to her daughter. No FOI request was made to the hospital in question and as such records held by it do not form part of this review. However the applicant is entitled to make an FOI request for access to records relating to these communications to the Hospital in question.
It should also be noted that where a request is made in the form of a request for specific information, as opposed to a request for specific records, the FOI Act does not generally provide a mechanism for providing such information except to the extent that the request can be reasonably inferred to be a request for relevant records that exist as of the date of the request which contains the information sought.
In her application for review to this Office the applicant indicated that she was seeking "the source contact that notified the HSE" of concerns in relation to her daughter. Effectively this a request for the name of the person who made the particular complaint. Therefore this review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to any records containing the requested information.
In its decision the HSE relied on section 26 (1)(a) and 26(1)(b) of the FOI Act to justify its decision to withhold the records in question. However this Office takes the view that section 10(1)(a) is the more relevant exemption to consider.
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."
In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
In this particular case the complaint referred to in the original FOI request was made by way of an anonymous phone call and as such the HSE was not provided with a name, address, contact number or any other details of the person who made the complaint. Therefore it is clear that the HSE holds no record which contains the name or identifying details of the complainant. The HSE have stated to this Office that as a matter of policy when making such complaints callers are not obliged to identify themselves if they do not wish to.
The position of the HSE is therefore that it cannot find any records relating to the applicant's FOI request because no such record was created. Having reviewed the complaint file in this case, which was provided to this Office by the HSE, I am satisfied that the HSE holds no record which contains the information sought by the applicant Accordingly, I find that the HSE was justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE 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.
Sean Garvey
Senior Investigator