Decision
Ms T and the Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: 120128
Published on
From Office of the Information Commissioner (OIC)
Case number: 120128
Published on
Whether the HSE was justified in deciding to refuse access to records relating to the applicant's personnel file and any related correspondence concerning the applicant
14 February 2014
This review relates to the applicant's original request of 23 November 2011. In its original decision of 6 January 2012, the HSE granted the request and provided copies of relevant records. As the applicant was not satisfied that she had been provided with all relevant records, she made an internal review request to the HSE on 17 February 2012. In its internal review decision of 1 March 2012, the HSE granted access to additional records. However, as she was still not satisfied that all relevant records had been identified, she applied to this Office for a review of the HSE's decision on 30 May 2012.
Ms. Brenda Lynch, Investigator advised the applicant of her preliminary views by letter of 9 January 2014. In response, the applicant indicated that she required a formal decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, to the provisions of the FOI Acts, and to the content of the records at issue.
The scope of the review relates to whether the decision of the HSE to effectively refuse access to remaining relevant records on the basis that they do not exist or cannot be found after all reasonable steps have been taken to search for the records, or that an exemption provided for in the FOI Act applies, is justified under the FOI Act. Any records or parts of records which were released during the course of the review are no longer in scope. Parts of records to which access was refused remain within the scope of the review
During the course of this review, there was a considerable amount of correspondence between the HSE and this Office, with a view to establishing that all records relevant to the applicant's request had been identified and considered. In its submission to this Office of 9 July 2012, the HSE stated that "a complete search of the Assistant National Director of HR (ANDHR) email file has been completed resulting in no additional emails." In a further submission of 29 April 2013, the HSE outlined in detail the steps taken to search for records, both paper and electronic and that these searches took 32 hours of administrative time "to ensure that a complete search had been undertaken". Specifically referring to the Office of the ANDHR, the HSE stated that: "A thorough manual and electronic search was conducted in the Office of the ANDHR. All records discovered were released. Full disclosure was granted, there were no exceptions".
Despite these assurances, the applicant was of the view that further specific records should exist and requests for further searches from this Office led to additional records being found in July 2013 and November 2013, almost two years after the original request was made and following two statements from the HSE that thorough searches had been undertaken. The records provided to this Office in November 2013 were from the Office of the ANDHR. There were significant delays on the part of the HSE in responding to requests for information made by this Office.
The applicant raised concerns at the delay in identifying relevant records and pointed out that it may have been of assistance to her had she been made aware of the existence of some of the records at an earlier stage, and not knowing about them may have been a disadvantage to her. It is important that public bodies have appropriate procedures in place to ensure that all records relevant to a request are identified for consideration at the earliest possible opportunity, and that such relevant records are considered in a timely fashion in accordance with the provisions of the FOI Acts.
The HSE's position is that it has now identified all records relevant to the applicant's request and released all of these records, with personal information of persons other than the applicant redacted from some of the records released.
Section 10(1)(a) provides that 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.
As set out above, the search for records in this case was protracted. According to the HSE's submission of 29 April 2013, 32 hours of administrative time had been spent on searches for records. This was prior to further searches carried out at the request of this Office. The HSE has informed this Office that searches were conducted at the HR Department, Connolly Hospital, the Louth Meath Hospital Group, the Office of the General Manager Louth Meath Hospital Group, the Office of the Assistant National Director HR Dublin North East and HR files. Further searches related to the files, paper and electronic, of named persons who held particular positions in the HSE. The further searches, carried out at the request of this Office, resulted in additional records being found. The applicant, who has been informed of the outcome of the searches and to whom additional records have been released during the course of the review, remains of the view that further records ought to exist.
I should explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
Having considered the matter, I am at this stage satisfied that reasonable steps have now been taken by the HSE to search for records and any further records either do not exist or cannot be found. Accordingly, I find that Section 10(1)(a) of the FOI Act applies to any further records.
Some information has been redacted from the records released on the basis that it is personal information of persons other than the applicant. Having reviewed the records at issue, I am satisfied that the redacted information is personal to identifiable third parties and not to the applicant, so I must now consider whether or not it should be released to her.
Section 28(1) of the FOI Act provides:
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".
The provisions of Section 28(2)(b) allow for the release of personal information where the person (or persons) to whom the information relates has consented to its release. I am satisfied that it is not reasonable or appropriate in the circumstances of this review to seek the consent of other individuals to the release of their personal information.
Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. Having reviewed the records, I am not satisfied that the public interest served by the disclosure of other parties' personal information would, in this instance, be of sufficient weight as to displace the public interest served by respecting the right to privacy of the individuals concerned.
Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the HSE and find that Section 10(1)(a) of the FOI Act applies to any further records which, in the applicant's view, should exist and that Section 28(1) of the FOI Act applies to the information redacted from the records released to her.
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. Any such 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