Decision
Dr D and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130213
Published on
From Office of the Information Commissioner (OIC)
Case number: 130213
Published on
Whether the HSE was justified, under section 10(1)(a) of the FOI Act, in refusing the applicant's request for access to records in relation to her and her appointment to a specified position in HSE Dublin North, on the grounds that the records did not exist or could not be found after all reasonable steps to ascertain their whereabouts had been taken.
28 May 2014
On 18 March 2013 the applicant sought access under the FOI Act to records relating to her held by the HSE Dublin North Mental Services since 30 March 2012 when she was successful at interview for a specified post with the HSE, as well as any records relating to her salary and her earlier position as locum Consultant. The application included a request for records held by a number of named HSE staff, including the Executive Clinical Director, HSE Dublin North ("the Director"). On 18 April 213 the HSE decided to grant access to 271 records related to the request, 254 in full and 17 with redactions relating to the personal information of third parties.
The applicant made an internal review request on 10 May 2013, where she noted that the documents released indicated that emails had been reported as lost or deleted by the Director and requested that these be retrieved and released to her. The applicant sought additional records at internal review which, with her agreement, the HSE dealt with as a separate FOI request. This review deals solely with the records sought in the applicant's original request. In relation to the records which were part released, the HSE's internal review decision on 10 June 2013 stated that the redacted information contained personal information related to third parties and was exempt from release under section 28(1) of the FOI Act. This has not been disputed by the applicant. The HSE released one further email at internal review which had been recovered following further searches and relied on section 10(1)(a) in relation to any other of the Director's emails which were missing or deleted, on the grounds that the records did not exist or could be found after all reasonable steps had been taken to ascertain their whereabouts. It also supplied details of the unsuccessful searches undertaken to retrieve the emails.
The applicant applied to the Information Commissioner for a review of the HSE's decision on 25 August 2013, stating that a number of records had not been released to her in relation to her request. This Office contacted the applicant by telephone to clarify the scope of this review. The applicant and the HSE confirmed that the additional records requested at internal review were the subject of a separate FOI request, in relation to which a decision and copies of records issued on 24 July 2013. An internal review request was made by the applicant and the HSE's decision issued on 9 December 2013. That decision was not the subject of an application for review to this Office. In her preliminary views to the applicant, dated 6 May 2014, Ms Sandra Murdiff, Investigating Officer, explained that the scope of this review solely concerns access to the missing emails referred to above, and that, in her view, the HSE's decision in relation to the emails was justified. The applicant replied, stating that she did not agree with Ms Murdiff's view in relation to the the HSE's decision. Accordingly, it is my opinion that this review should now be concluded by way of a formal decision. In conducting this review I have had regard to the HSE's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the HSE; and the provisions of the FOI Act.
The scope of this review is concerned solely with the question of whether the HSE was justified in deciding to refuse access to the Director's emails under section 10(1)(a) of the FOI Act.
The HSE refused access to the email records as set out above on the basis of section 10(1)(a) of the FOI Act, which provides that a public body may refuse access 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 the public 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 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 the public body, on the basis of which the public body 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 ). I note that Ms Murdiff asked the applicant if she thought that there were specific email records being withheld which she could supply details of but that the applicant did not respond.
In submissions made to this Office, the HSE has provided details of its Information Technology policy, practice and procedures and the steps taken to locate and retrieve the emails in question. In this case the records were originally held by the Director, who had moved a number of emails to her archive folder, which she then discovered she could no longer access. The HSE's IT Department stated that if these records had been saved in her Outlook mailbox, they would have been routinely backed up and recoverable, but that the archive folder was not backed up and the files could no longer be found. The Director was initially unsure that any of the emails which were lost or deleted related to the applicant, but she is now satisfied that all emails she can recall in relation to the applicant have been released and that none remain to be found. I note from the schedule of records supplied by the HSE that a number of emails held by the Director were released.
The position of the HSE is that the emails referred to above cannot be found or no longer exist. Having reviewed the measures taken to locate the records, I am satisfied that the HSE has taken all reasonable steps to locate the emails and I find that the HSE's decision was correctly made in accordance with 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.
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Sean Garvey
Senior Investigator