Decision
Mr Z and the Health Service Executive (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 180085
Published on
From Office of the Information Commissioner (OIC)
Case number: 180085
Published on
Whether the HSE was justified in its decision to refuse to release records relating to the appointment of a number of hospital consultants on the ground that the records were created prior to the effective date of the FOI Act
8 May 2018
On 7 November 2017, the applicant applied to the HSE for information relating to the criteria and qualifications required for the roles to which a number of named hospital consultants were appointed and the CVs of these consultants as they were at the dates of their appointments. The applicant also sought the name of the Minister who approved these posts and the name of the CEO of the Southern Health Board at the time of the appointments.
The HSE refused the request on the basis that the FOI Act does not apply to records which were created before the effective date (21 October 1998 in the case of the HSE). The applicant sought an internal review of the decision in respect of the consultants based with the Kerry Mental Health Services. On 27 February 2018, the HSE affirmed its original decision. On 6 March 2018, the applicant sought a review by this Office of the HSE's decision.
In an email dated 27 April 2018, Ms Whelan of this Office wrote to the applicant and informed him of her view that section 11(4) of the FOI Act was of relevance to the review as, with limited specified exceptions, there is no right of access to records that were created before the effective date. Ms Whelan invited the applicant to make a further submission and also offered him an opportunity to withdraw his application for review.
No further submissions were provided by the applicant and he declined to withdraw his application for review. Therefore, I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to the communications between the HSE and the applicant, and to the communications between this Office and both the applicant and the HSE on the matter.
This review is solely concerned with whether the HSE was justified in refusing the applicant's request for information relating to the appointment of a number of named consultants on the ground that the records were created before the relevant effective date, 21 October 1998.
In light of the applicant's submissions to this Office, it is important to note at the outset that in the circumstances of this case, I am required, under section 13(4), to disregard any reasons the applicant has for seeking access to the records in question.
In correspondence with this Office, the HSE stated that each of the named consultants were appointed to their positions between 1982 and 1997. Given the wording of the applicant's request, it is clear that any relevant records containing the information sought would have been created in those years. Under section 11(4) of the FOI Act, a right of access exists to records that were created after the effective date of the Act, and to certain other records as may be prescribed by the Minister for Public Expenditure and Reform. No other such records have been prescribed by the Minister. In the case of the HSE, the effective date is 21 October 1998. This means that no right of access exists to records created before that date unless section 11(5) applies.
Section 11(5) provides for the release of records created before the effective date (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester. The applicant has not identified any record created after 21 October 1998 that cannot be understood without access to records created before this date, nor has he suggested that the records sought relate to personal information about him. I find that section 11(5) does not apply.
In conclusion, therefore, I find that the HSE was justified in refusing the applicant's request for certain information relating to the appointment of specified named consultants on the ground that any such records would have been created before the effective date and that no right of access exist to such records.
Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the HSE to refuse the applicant's request on the basis that the records sought were created before the effective date of the FOI Act.
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