Decision
Mr X and Children's Health Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-141486-X7P8S8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-141486-X7P8S8
Published on
Whether CHI was justified under sections 15(1)(a) and 15(1)(c) of the FOI Act in refusing access to various records relating to CCTV cameras on CHI properties
8 January 2024
The case follows on from a previous decision issued by this Office (OIC-132665-J9G7M0 refers), in which this Office annulled and remitted the decision of CHI to refuse the applicant’s request on the ground that it had failed to comply with the requirements of section 15(1)(c) of the FOI Act.
On 25 July 2022, the applicant made a request for the following:
On 4 April 2023, this Office issued a decision to annul CHI’s decision to refuse the applicant’s request under section 15(1)(c) of the Act, as it had not complied with the provisions of section 15(4) of the Act, and directed CHI to consider the request afresh.
On 23 May 2023, CHI emailed the applicant and requested that he contact it to discuss his FOI request. On 26 May 2023, the applicant replied and said to let him know if there is a specific clarification he can provide that would help to process his request in a timely manner. On 1 June 2023, the applicant applied for an internal review decision on the basis of CHI’s failure to issue an original decision to him. On 16 June 2023, CHI emailed the applicant and said it was in the process of collating the records the applicant sought and that a number of departments across the four CHI sites had been contacted to collate the records sought. On 29 June 2023, CHI wrote to the applicant apologising for the delay and advising him that it was working on a response that it hoped to have out to him shortly. On 7 July 2023, CHI emailed the applicant requesting that he contact CHI by phone on 11 July 2023 to discuss his request. On 9 July 2023, the applicant emailed CHI saying he was travelling and would be unable to call. He requested a response to his FOI request.
On 20 July 2023, the applicant applied to this Office for review of CHI’s deemed refusal of his request. On 10 August 2023, at the request of this Office, CHI wrote to the applicant setting out its effective position on his FOI request. CHI said it had encountered difficulties collating the records sought by the applicant and that it needed to discuss the scope of the applicant’s request with him. CHI outlined its efforts to contact the applicant and said it was unable to respond to his request without a discussion with the applicant. CHI said that the records requested by the applicant “are on separate sites, on local systems and the services is with different CCTV contractors”. CHI stated that the scope of the request is vast as it extends from 2017 to 2022.
On 14 August 2023, the applicant applied to this Office for review of CHI’s decision to refuse his request. While he noted CHI’s comments about its efforts to contact him, the applicant referred to his email of 26 May 2023 offering to provide CHI clarification on his request. The applicant said he had not received any clarification questions in writing from CHI.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by CHI in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
CHI did not refer to any provisions of the FOI Act for refusing the applicant’s request when it emailed him seeking to discuss the scope of his request, nor did it do so when asked by this Office to set out its effective position on the applicant’s request. CHI contends that it is unable to respond to the applicant’s request without a discussion with him. In its submissions to this Office, CHI said it had previously released information to the applicant relating to the first part of his request. CHI said it was relying on sections 15(1)(a) and 15(1)(c) of the Act to refuse the remaining elements of the applicant’s request on the grounds that the records do not exist or cannot be found and on the basis that processing his request would cause a substantial and unreasonable interference with or disruption of its work.
Accordingly, this review is solely concerned with whether CHI was justified in its decision to refuse the information sought by the applicant relating to CCTV cameras under sections 15(1)(a) and 15(1)(c) of the FOI Act.
It is important to note that section 22(12)(b) of the Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body “shows to the satisfaction of the Commissioner that the decision was justified”. Therefore, in this case the onus is on CHI to satisfy me that its decision is justified.
As CHI should be aware, there is a significant amount of guidance and support material available to FOI bodies to assist them in meeting their statutory obligations under the Act. This Office publishes comprehensive guidance notes and sample questions to assist FOI bodies in decision-making on our website: www.oic.ie. All of the decisions issued in respect of our reviews are also published on the website. The Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform also publishes guidance documents, training manuals, and a Code of Practice at https://foi.gov.ie/. I expect CHI to ensure that it processes FOI requests in line with the requirements of the FOI Act.
Section 15(1)(c)
In its submissions to this Office CHI said that Children’s Health Ireland is a legal entity since 1 January 2019 incorporating the Children’s Hospital, Temple Street and Our Lady’s Hospital Crumlin. CHI stated that the Urgent Care Centre (UCC) based in James Connolly Memorial Hospital Blanchardstown was built in September 2020 and the Out-Patient Department (OPD) and Emergency Care Unit (ECU) based in Tallaght University Hospital were built in November 2021. CHI said that on 18 November 2022, in its response to the applicant’s request, it provided him with data in relation to the first part of his request related to the number of CCTV cameras in operation in CHI buildings and the number of CCTV cameras procured since 2017.
In its submissions, CHI stated that in relation to the invoices, contracts, tenders, service agreements, purchase orders, procurement documents, offers etc. concerning products and services related to CCTV cameras, that Temple Street and Our Lady’s Hospital Crumlin have not tendered for CCTV cameras since 2017. It stated that cameras purchased since 2017 have been procured as part of a new build or an upgrade. CHI stated that the Design Team tender for the project and requirement for CCTV cameras forms part of the electrical specification of the tender and the electrical contractor or sub-contractor procures the CCTV cameras and specifications. CHI stated that once the project is completed the information relating to the CCTV cameras is contained in the Operational and Maintenance manual. It said that the electrical contract forms part of the main contractors and the invoices are not itemised. CHI stated that there is a maintenance contract in place for maintaining the cameras which includes replacing cameras as required. It stated that it would take considerable time to search for these records due to the number of major builds and up-grades that have taken place in CHI at Temple Street and Our Lady’s Hospital Crumlin since 2017. CHI stated that as it was denying access to these records under section 15(1)(c) of the FOI Act.
Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.
Section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether CHI was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
Having reviewed CHI’s submissions in this matter, while it is clear that it corresponded with the applicant during the initial stages of processing his request, it did not inform him that it considered his request voluminous and that it may be refused under section 15(1)(c) of the FOI Act. Additionally, having regard to the correspondence between the applicant and CHI, while it did ask that the applicant contact CHI to discuss his request, there is no evidence that has been provided to this Office that the applicant was offered assistance in refining his request in accordance with the provisions of section 15(4) of the Act.
The provisions of section 15(4) of the Act are clear. An FOI body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under section 15(1)(c). CHI did not do so in this case before making its decision. Therefore, I find that CHI did not comply with provisions of section 15(4) in this case. My finding that CHI did not comply with the provisions of section 15(4) is, of itself, sufficient for me to find that CHI was not justified in refusing the applicant’s request under section 15(1)(c) of the Act, and I find accordingly.
However, that is not the end of the matter, as in its submissions to this Office CHI stated that it also wished to rely on section 15(1)(a) of the FOI Act.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI 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 and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In its submissions to this Office, CHI stated that CHI at Temple Street and Our Lady’s Hospital Crumlin have not tendered for CCTV since 2017. It stated that the National Paediatric Hospital Development Board (NPHDB) tendered and procured CCTV cameras for the Urgent Care Centre (UCC) at James Connolly Memorial Hospital (Connolly Hospital) and the Out-Patient Department (OPD) and Emergency Care Unit (ECU) in Tallaght University Hospital (Tallaght Hospital). CHI stated that NPHDB is a separate legal entity and that CHI does not hold records relating to the tendering process for the procurement of CCTV cameras for these sites. CHI stated that it had provided information to the applicant in relation to the number of cameras currently in operation at the UCC at Connolly Hospital and the number of cameras currently in operation at the ECU and OPD in Tallaght Hospital, as well as information about the number of cameras at Temple Street and Crumlin hospitals.
While CHI said that NPHDB is a separate legal entity and that the NPHDB had procured CCTV cameras at Connolly and Tallaght Hospitals, it is unclear what relationship exists between CHI and the NPHDB regarding the operation of cameras at these sites. It is also unclear from CHI submissions whether it holds any relevant records relating to those sites. I note, for example, that CHI said it had provided information to the applicant about the number of CCTV cameras at both of these sites. Furthermore, I note that while on the one hand CHI stated that CHI at Temple Street and Our Lady’s Hospital Crumlin have not tendered for CCTV since 2017, it also said a number of major builds and upgrades have taken place at Temple Street and Our Lady’s Hospital Crumlin since 2017. In my view, CHI has not adequately explained why it holds no further relevant information about the four CHI sites, nor has it provided details of the searches it undertook to locate such records.
In relation to the data sheets and specifications for CCTV for CHI at Temple Street and Crumlin hospitals, CHI stated that these records are held by the CCTV Contractor who is a third party and are not held by CHI.
Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. Section 2 defines “Service Provider” as “a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.”
The effect of section 11(9) is that any records held by a service provider that relate to the service provided for the FOI body are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt. This does not mean that all records held by the service provider are subject to the Act. The records must relate to the service provided for the FOI body.
As noted above, in relation to the data sheets and specifications for CCTV for CHI at Temple Street and Crumlin, CHI stated that these records are held by the CCTV Contractor who is a third party and are not held by CHI. Any relevant records held by CCTV contractors who are providing a service to CHI under a contract for services are deemed to be held by CHI for the purposes of the FOI Act. In my view CHI has not demonstrated that it has undertaken sufficient enquiries to establish what, if any, relevant records held by CCTV contractors may be captured by section 11(9) of the Act. Having regard to the requirement under section 15(1)(a) of the Act that an FOI body must have taken all reasonable steps to ascertain the whereabouts of records sought, it seems to me that CHI could reasonably have been expected to at least engage with the CCTV Contractor(s) to determine whether relevant records exist that are deemed to be held by CHI for the purpose of the FOI Act.
In the circumstances, I am not satisfied that CHI has undertaken all reasonable steps to locate the whereabouts of all relevant records sought by the applicant in this case. Accordingly, I annul CHI’s decision to refuse the applicant’s request for records under section 15(1)(a) of the Act.
In conclusion, I find that CHI was not justified in refusing the applicant’s FOI request under either section 15(1)(a) or section 15(1)(c) of the FOI Act. I direct it to consider the applicant’s request afresh and to make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.
Finally, it seems to me that the essence of CHI’s position in this case is that it potentially holds a very large number of records that come within the scope of the applicant’s request. While I acknowledge that CHI made efforts to engage with the applicant about the scope of his request, it seems clear to me that further engagement between both parties would have been of great help in clarifying the matter. If CHI intends to rely on section 15(1)(c) of the Act, it must comply with the requirements of section 15(4) beforehand, in which case it should write to the applicant explaining why it considers section 15(1)(c) applies and offer to assist him in amending his request so that processing it no longer causes an unreasonable interference with, or disruption of, its work. This Office’s guidance note on section 15(1)(c) of the Act which may be of assistance is available at https://www.oic.ie/guidance-and-resources/guidance-notes/1-Section-15(1)(c)-Guidance-Note.pdf. In order to avoid a repeat of the issues encountered in this case, I would also suggest that the applicant engage constructively with CHI in this regard.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul CHI’s decision to refuse the applicant’s FOI request under sections 15(1)(a) and 15(1)(c) of the FOI Act. I direct it to undertake a fresh decision making process on the request.
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.
Richard Crowley, Investigator