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Whether the HSE was justified in its decision to refuse access to details of the number of European Health Insurance Card (EHIC) applications made in April 2010 by hard copy or by personal attendance at local office, under section 10(1)(a) of the FOI Act, on the basis that no relevant records containing the information sought exist or can be found

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review has its background in a complaint the applicant made to the HSE in connection with an EHIC card having been issued to a third party bearing the applicant's PPSN. Arising from correspondence on that matter, the applicant submitted a request to the HSE on 8 October 2013. The applicant sought from the HSE details of the number of EHIC applications made in April 2010, split into male/female and categorised by the method of application, i.e. by hard copy, online, or by personal attendance at the local office. On 17 February 2014 the HSE in Donegal issued a decision on the FOI request, refusing access to records relating to hard copy applications as they were not retained following input on the EHIC system and to records relating to personal attendance on the ground that it did not hold the relevant information. In relation to the request for details of applications made online, the HSE informed the applicant that it had transferred the request to the Primary Care Reimbursement Service (PCRS) as that Office has responsibility for the electronic administration of the EHIC scheme.

Apparently the applicant replied to the decision maker on 21 February 2014. He also wrote to the PCRS on 7 April 2014 seeking an internal review of the HSE's decision on his request. On 28 April 2014, the PCRS provided the applicant with details of the total number of applications made online in April 2010, broken down by male/female and by County. Following further correspondence on the matter, the PCRS provided a more detailed breakdown, by letter dated 24 July 2014, to include details of the numbers of applications made through self-service (online) and those made manually on behalf of a client through a local Health Office. There was no indication as to how many of the manual applications were made by way of personal attendance at a local Health Office. On 14 August 2014 the HSE issued an internal review decision, upholding the decision to refuse access to records relating to hard copy and personal attendance applications, and noting that a decision on that part of the request for details of online applications was provided by the PCRS. The applicant wrote to this Office on 28 December 2014, seeking a review of the HSE's decision.

I note that during the course of the review, the applicant accepted that the HSE had provided the relevant information sought concerning the number of applications made online and that this issue would not be considered further. I further note that Mr Benjamin O'Gorman of this Office informed the applicant, by letter dated 8 April 2015, of the details provided by the HSE as to the steps it took to locate records containing the remaining information requested. Mr O'Gorman informed the applicant of his view that the HSE had carried out all reasonable steps to locate records containing the information requested. As the applicant remained dissatisfied with the HSE's responses, I consider that this review should now be brought to a close by the issue of a formal, binding decision.

In carrying out this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and between this Office and the HSE. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is concerned solely with whether the HSE was justified in its decision to refuse access to details of the number of EHIC applications made in April 2010 by hard copy or by personal attendance at the local office on the ground that no relevant records containing the information sought exist or can be found.

Preliminary Matters

Many of the issues the applicant raised in his correspondence with this Office are concerned with the manner in which the HSE dealt with his complaint relating to the matter of an EHIC card having been issued to a third party bearing the applicant's PPSN. As this Office has no role in examining the administrative actions of public bodies, this review will have no regard to such matters. I further note that in a letter of 30 March 2015 to this Office, the applicant also makes reference to what he describes as "non-compliance by the HSE to [his] requests under the Freedom of Information Acts, particularly those requests for the release of documents containing information which the HSE gave to the Data Protection Commissioner and to the Ombudsman respectively". The scope of this review is as outlined above and does not extend to issues arising in relation to the processing of other FOI requests.

Analysis and Findings

I should explain at the outset that requests for information, as opposed to requests for records, are not valid requests under the FOI Act. The FOI Act does not require public bodies to create records if none exist and does not oblige public bodies to answer general queries. Furthermore, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. Accordingly, the question to be considered in this case is whether relevant records are held by the HSE that contain details of the information sought by the applicant.

Section 10(1)(a) of the FOI Act provides that a public body may refuse a request for access to records where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in such cases 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 was reasonable. The Commissioner's understanding of his 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 the website of this Office at www.oic.ie).

The HSE, through the PCRS, was able to identify the number of applications made online, and the number of applications made manually through a local office, for the month of April 2010. My understanding from what the HSE has stated is that it has no way of determining whether a hard copy application was made by post or by personal attendance at a local office, as it cannot distinguish such information from the overall manual figure. While I note the applicant indicated he was primarily interested in applications made in Donegal, the HSE in Donegal has stated that the hard copy applications for the relevant period no longer exist as they appear to have been destroyed. It outlined the details of the searches undertaken to locate the records, details of which were provided to the applicant by Mr O'Gorman of this Office. While I do not intend to repeat those details here, they are relevant for the purposes of this decision.

The applicant contended that while the HSE in Donegal had advised that it normally retains applications for three years, HSE West had indicated to him that they are retained for four years. Mr O'Gorman put this discrepancy to the HSE and it stated that as there are no set retention guidelines for such applications, different areas of the HSE adopt different retention periods. In any event, it is not entirely clear that the hard copy records, of themselves, would allow the HSE to provide the relevant information sought.

Accordingly, having reviewed the submissions from the HSE, I am satisfied that it is reasonable to conclude that the HSE has taken all reasonable steps to locate all relevant records and that the records sought do not exist. I find, therefore, that the HSE's decision to refuse the applicant's request under section 10(1)(a) was justified.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator