Decision
Mr G and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 140035
Published on
From Office of the Information Commissioner (OIC)
Case number: 140035
Published on
Whether the HSE was justified in its decision to refuse access to records comprising correspondence between it and a named third party (the "Third Party") under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts had been taken
28th May 2014
On 22 May 2013, the applicant submitted a Freedom of Information request to the HSE for access to records comprising, "[a]ny correspondence between the HSE and [the Third Party] regarding conflicts of interest in the last 5 years". By way of letter dated 23 May 2013, the HSE refused access to records under section 20 of the FOI Act. The applicant sought an internal review of this decision by way of letter dated 18 July 2013. The internal reviewer refused access pursuant to section 10(1)(a) of the FOI Act, but also made reference to section 23 of the Act. The outcome of the internal review was communicated to the applicant by way of letter dated 20th August, 2013. On 3 February 2014, the applicant sought a review by this Office of the HSE's decision.
I note that Mr. Niall Mulligan of this Office advised the applicant that the decision of the HSE was justified in his view. The applicant did not offer any further submission to this Office and I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the HSE's decision on the matter and its communications with this Office, as well as the applicant’s communications with this Office and the HSE. I have also had regard to the provisions of the FOI Act.
The HSE's internal review referred to section 10(1)(a) of the FOI act, but also to section 23 of the Act. Following correspondence with the Office, it was clarified by the HSE that only the exemption under section 10(1)(a) was being asserted for the purposes of this review.
The HSE stated in its submissions that the internal reviewer had taken a view at the outset that any conflict of interest that was evident in the records would be a matter for investigation by the Gardaí or other relevant authority, and thus would fall within the scope of section 23. However, once searches had been carried out, it became clear that no records had been located relating to conflicts of interest, and the decision was made under section 10(1)(a).
This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records sought pursuant to section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
The applicant’s original request was for access to records comprising "[a]ny correspondence between the HSE and [the Third Party] regarding conflicts of interest in the last 5 years".
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record 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).
In submissions to this Office, the HSE outlined in detail the steps which had been taken in pursuance of the applicant’s request. The records comprising "all correspondence between the HSE and [the Third Party] in the last 5 years" come to 9 volume folders and approximately 700 records in total. In order to meet the applicant's request, the HSE applied the search term "conflict of interest" to this set of records. Manual searches were carried out by senior office staff, over the course of a number of days, but no records were found to match this search term. I have no reason to doubt these submissions.
The position of the HSE is that it cannot find any records relevant to the applicant's FOI request. I am of the view that the search methodology applied was reasonable, in light of the volume of records involved and the terms of the applicant's request. In the circumstances of this case, in my view it would be not be reasonable to ask the HSE to commit to conducting further searches. I am satisfied that the HSE has taken reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of 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