Cinneadh
Mr Y and Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-158352-G7C9K2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-158352-G7C9K2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified, under section 15(1)(b) of the FOI Act, in refusing the applicant’s request on the ground that the request did not contain sufficient particulars to enable the HSE to identify the records sought
22 August 2025
The background to this case concerns the birth of the applicant’s daughter which has been the subject of various complaints, clinical reviews and legal proceedings.
In a request dated 27 November 2024, the applicant sought access to all communications between the HSE (and HSE managed hospitals and Hospital Groups) and the National Treasury Management Agency (NTMA)/ State Claims Agency (SCA) regarding his daughter. In a decision dated 14 January 2025, the HSE informed the applicant that his request had been split into two separate requests as his request spanned both National Offices and localised sites. The HSE said it had split the request as follows:
1) All communications between the HSE and NTMA/ State Claims Agency regarding the applicant’s daughter.
2) All communications between HSE managed hospitals or Hospital Groups and NTMA/ State Claims Agency regarding the applicant’s daughter.
The HSE said that Part 2 of his request had been directed to a specific Consumer Affairs Division of the HSE to be dealt with by the HSE hospital where his daughter was born. On 15 January 2025, the relevant hospital issued a decision on Part 2 of the request in which it refused the request under section 15(1)(a) of the FOI Act on the basis that no records could be found. The decision also said that one record was located which was attached. The decision informed the applicant of his rights of review. The HSE informed this Office that it received no internal review request in respect of its decision on Part 2.
In its decision dated 14 January 2025 referred to above, the HSE refused Part 1 of the applicant’s request under section 15(1)(a) of the Act in relation to any relevant records held at “National Level”. It said that liaising with the State Claims Agency on individual cases is not carried out at national level and that communication is initiated and records are held at local level with the service provider. The HSE said that any FOI requests about individual persons should be directed to the service where they were a patient. The HSE said it had determined that these records are held by the FOI Department in the relevant hospital. In addition, it said that searches were carried out to determine if any other records within the scope of the applicant’s request were held at National Level and none were identified.
On 16 January 2025, the applicant requested an internal review of the HSE’s decision dated 14 January 2025. He attached a copy of a 2014 letter from the former Chief Medical Officer to the HSE relating to the matter and said that, at a minimum, that letter and any response to it should have been provided in response to his request.
On 10 February 2025, the HSE wrote to the applicant and said it decided to annul its original decision in regard to Part 1 of the applicant’s request. The HSE said that the request (Part 1) risked being refused under section 12(1)(b) of the FOI Act as it does not contain sufficient particulars to enable the HSE to identify the records sought. The HSE asked the applicant to clarify his request so the record(s) he requested can be identified. The HSE said the wording of his request would require the examination of a voluminous number of records across the organisation to establish if any such records were held. The HSE suggested the applicant revise his request to identify where in the organisation the records may be held. The internal reviewer suggested the most likely division is the National Quality and Patient Safety Office. The HSE asked the applicant to provide the most likely National/Corporate Office where the records may be located, identifying details of his daughter, the relevant timeframe, and the specific subject matter in order for it to conduct searches for records. The HSE said the letter the applicant provided from the CMO has no bearing in respect of the identification of records which are the subject of his request.
On 24 March 2025, appealed to this Office on the basis that he had received no decision in response to his internal review request. On 16 April 2025, following communications between this Office and the HSE in the matter, the HSE wrote to the applicant and refused his request under section 15(1)(b) of the Act on the basis that the request does not comply with section 12(1)(b) of the Act. On 20 April 2025, the applicant applied to this Office for a review of the HSE’s decision. He said the HSE and the Hospital have provided no information regarding it and the SCA/NTMA.
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 correspondence outlined above and to the submissions made by both parties during this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing the applicant’s request, under section 15(1)(b) of the FOI Act, for all communications between the HSE (and HSE managed hospitals and Hospital Groups) and the NTMA/SCA regarding his daughter, on the ground that the request did not contain sufficient particulars to enable the records sought to be identified.
Before dealing with the substantive matters of this case, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
As noted above, in his request for an internal review the applicant attached a copy of a letter from the Chief Medical Officer to the HSE relating his daughter’s case and said that at a minimum he should have been provided with a copy of this letter and any response from the HSE. The applicant also referred to this letter in his submissions to this Office. While the content of this letter may have assisted the HSE in understanding the context of the applicant’s request, the letter itself is not a communication between the HSE and the NTMA/SCA and as such does not fall within the scope of the applicant’s request.
Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. Section 15(1)(b) is subject to section 15(4) of the Act, which provides that a body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under section 15(1)(b).
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). This Office takes the view that before a body can refuse a request under section 15(1)(b), the body must first have provided reasonable assistance to the requester in amending the request or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
While there is an onus on FOI bodies to assist, or at least offer to assist, requesters (as required under section 15(4), it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward, as requesters may not necessarily be aware of the type, nature and/or location of the records held.
In its submissions, the HSE provided some background information to this case. It said the applicant raised initial concerns relating to the care of his wife during her pregnancy and delivery of their daughter at a specified hospital in December 2011. It said the applicant’s daughter is in receipt of services from Disability Services through a specified Community Health Organisation (CHO). It stated that legal proceedings relating to a personal injuries claim was settled with the applicant’s wife, and that a number of reviews were undertaken relating to matter, including:
• Internal Review of Clinical Records of [named hospital] – completed 2012
• Independent Serious Adverse Incident Review – completed 2013
• Independent Clinical Review – commenced in 2016 but not completed
• Various complaints under Your Service Your Say – all concluded
• Complaints to professional bodies in respect of a number of staff who were involved in the care of the applicant’s wife/child
• FOI & Data Protection requests
The HSE said that in addition to his engagements with staff directly involved with his wife’s care, the applicant has also engaged with a large number of other staff across the organisation both at local and national level. It said engagements are numerous and are concerning for staff. The HSE said it had decided to put in place a single point of email contact between it and the applicant in matters other than those relating to direct service provision for his daughter. The HSE said the applicant had originally sought all communications between the HSE (and HSE managed hospitals or Hospital Groups) regarding his daughter. It said that following communication with the applicant, he subsequently amended his request to all communications between the HSE (and HSE managed hospitals and Hospital Groups) and the NTMA/ State Claims Agency regarding his daughter. In regard to its decision to split the applicant’s request into two separate parts, the HSE said the request implied that all communication regarding the applicant’s daughter should involve the HSE, its managed hospitals and its hospital groups, not just the HSE itself, when communicating with the NTMA/SCA. It said it was therefore deemed to span both National Offices and localised sites (any hospital or hospital group).
The HSE provided details of the steps it had taken to identify and locate records relating to the applicant’s request and included copies of internal communications relating to the request. It said it received the FOI request at the agreed upon single point of contact and engaged with the applicant to amend the request to specify that he was seeking access to records of communication between the HSE/HSE Managed Hospitals or Hospital Groups and the NTMA/State Claims Agency in relation to his daughter. It said it then proceeded to split the request and search responsibilities between the HSE at a national level and directed the hospital where his daughter was born to conduct its own searches and issue its own decision to the applicant.
The HSE said the Access & Integration (A&I) section began the process of investigating where records relating to his request may be located. In a copy of correspondence provided to this Office as part of the HSE’s submissions, it identifies what it understands to be the hospital and hospital group and, following consultation among staff, the HSE understands the relationship between the NTMA/ SCA and the HSE is managed by the Chief Clinical Officer’s (CCO) National Quality and Patient Safety (NQPS) office. The correspondence goes on to demonstrate a process to determine the appropriate decision maker at the national level and the HSE said that communications took place between A&I, National FOI, NQPS, Regional Executive Office, Consumer Affairs Decision, the hospital in question, and the HSE CEO’s office to determine if and where records may be held. The HSE said these communications confirmed that records relating to the applicant’s request would be found locally with the hospital and that no records existed or could be found at national/ central level. It said what it considered Part 2 of the request was already in the process of being responded to at the local level by FOI staff at the relevant hospital.
The HSE also provided general information regarding the practices governing NIMS. It said communication between the HSE and the SCA is conducted through NIMS. It said the records on the system remain the property of the service provider that created the incident report. It said that at the Corporate/ national level, the NIMS system is the source data in terms of incident management as a quality indicator and is also used to inform the National Service Plan KPIs, but access to the system is restricted and personal details are anonymised and it functions only as a reporting tool.
The HSE said a request for a search of electronic files and email folders were sent to the following national offices:
• Access & Integration
• Acute Operations
• Acute Hospitals
• CEO Office
• CCO Office/ NQPS
In its submissions, the HSE provided a copy of and email it sent to the applicant on 21 March 2025, following what it describes as numerous emails he sent to the HSE’s single point of email contact for all his communications. The HSE’s email said that its original decision should not have been processed or released as the applicant’s original request was not a valid request under the FOI Act as it did not include particulars or details to carry out a valid search for records. The HSE said the decision-maker assumed the daughter’s details as she has dealt with other FOI requests and communications from the applicant. In its email to the applicant, the HSE said that a newer member of staff who is not aware of any previous communications pointed out that the request was invalid as it did not contain sufficient particulars to execute a search for records. The HSE told the applicant it was inappropriate for the original decision maker to make a presumption in respect of the original request, which led to the original decision being annulled. In its email of 21 March 2025 to the applicant, the HSE also referred to comments from the applicant that he was advised by the NTMA/SCA there was correspondence. The HSE recommended that the applicant contact the NTMA/SCA and ask what area/division of the HSE had corresponded with the NTMA/SCA.
In submissions to this Office, the applicant questioned why the HSE split his request between the national level and the local hospital. He argued that the HSE was able to identify the correct hospital and therefore did not accept that it was unable to identify the records sought without further details being provided from himself.
The applicant claims the HSE institutions and the HSE itself has statutory obligations in terms of informing SCA/NTMA in relation to the matter. He said that to suggest that the HSE has no idea where or which HSE department this obligation resides with is simply not credible. He also said that for the HSE to suggest that he should have knowledge of the particular HSE individual/department responsible for complying with those statutory obligations is also not credible. Overall, the applicant expressed his dissatisfaction about how the HSE dealt with his request.
In its submissions to this Office, the HSE suggested that any relevant records between it and the SCA would be held by the relevant hospital. Given this comment, it is unclear why the HSE decided to split the applicant’s request rather than simply directing it to the relevant hospital. However, it seems to me from the HSE’s submissions that in deciding to split the request into two parts (i) for records held at national level and (ii) for records held at local level, the HSE was endeavouring to cover the possibility that relevant records may be held in either or both locations.
Section 12(1)(b) of the Act provides that a request shall contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. In my view, it is clear from the HSE’s submissions that it had no difficulty in understanding what records the applicant is seeking. Indeed, it is apparent that the HSE has had extensive engagements with the applicant in relation to the birth of his daughter over a number of years and is aware the matter was the subject of legal proceedings. The HSE seems to have placed undue emphasis on the views of a newer member of staff saying the request was invalid as it did not contain sufficient particulars to search for the records. I would expect the HSE to rely on all information it has available to it when considering the applicant’s request. It seems to me that the HSE has a significant amount of details available to it to enable it to make enquiries to ascertain whether it holds the records sought by the applicant and where any such records may be held. Notwithstanding my comments, I accept it was appropriate for the HSE to engage with the applicant in an effort to ascertain if he had any additional information that might assist it in processing his request.
The HSE has made various arguments in relation to the applicant’s request, firstly under section 15(1)(a) on the basis that it cannot locate the records and subsequently that it has insufficient details to enable it to identify the records. It also informed the applicant that processing the request would require the examination of voluminous amounts of records across the organisation to establish if any such records were held. While there is an onus on the applicant to provide sufficient particulars in relation to the information he is seeking, the HSE seems to expect the applicant to identify what area within the HSE would hold correspondence with the NTMA/SCA. Given the background and high profile nature of the applicant’s case, which the HSE is well aware of, I do not accept the HSE’s argument that the request does not contain sufficient particulars in relation to the information sought to enable it by taking reasonable steps to identify the records sought, or to establish whether any such records exist.
It is evident that the HSE was able to identify the hospital that the applicant’s daughter was born in and send part of the request to that hospital to search for records. It also identified the HSE area at the national/ central level with primary responsibility for communicating with the NTMA/SCA. The HSE also suggested to the applicant that he contact the NTMA/ SCA to find out what area of the HSE had communications with it. It seems to me that the HSE could have made direct enquiries with the NTMA/ SCA itself or indeed contacted its own legal advisors who may also have been able to shed light on the matter. While I accept that the HSE made efforts to establish whether it holds any relevant records, I do not accept that this is a case where it does not have sufficient details to enable it to identify what records the applicant is seeking by the taking of reasonable steps. It seems implausible to me given the background to this case that the HSE cannot establish what part of its organisation dealt with the NTMA/SCA in relation to the applicant’s case. If the HSE is unable to locate the records after taking all reasonable steps to do so, then section 15(1)(a) of the Act may be relevant.
In conclusion, I am not satisfied that the HSE was justified in refusing what it describes as Part 1 of the applicant’s request under section 15(1)(b) of the Act and I find accordingly.
Ordinarily, I would be minded to only remit Part 1 of the request back to the HSE to process afresh, as it had made a separate decision in relation to Part 2. However, in the circumstances of this case I deem it more appropriate to annul the HSE’s decisions at both national and local level and to direct it to process the applicant’s request afresh. While the HSE decided to split the applicant’s request into two parts, both parts are inextricably linked to the one request the applicant made for all communications between the HSE and the NTMA/SCA in relation to his daughter. In my view the HSE has dealt with the applicant’s request poorly and caused confusion by initially refusing the request under section 15(1)(a) of the Act and subsequently claiming the request did not contain sufficient information to enable the records to be identified. Accordingly, I believe the most appropriate course of action in this case is to annul the HSE’s decisions made at both national and local level and to direct it to consider the applicant’s request in full afresh. The applicant will have a right to an internal review and to seek a review by this Office if he is not satisfied with the HSE’s fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision on the applicant’s request and direct it to consider the request afresh.
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