Whether the HSE was justified in deciding to refuse access to further records relating to the applicant and her request for a transfer under section 15(1)(a) on the ground that they do not exist or cannot be found

3 December 2018 

Background

On 6 February 2017 the applicant submitted a request to the Head of Human Resources in a particular region of the HSE for 5 sets of records, namely;

1. all records held in her HR file in a named HSE service area
2. all records regarding her application for retrospective leave of absence following a meeting with a named HSE staff member on a certain date
3. all records regarding complaints made about the applicant to HR or to the management of the named HSE service area and all records related to follow-up recommendations and/or actions taken by the HSE
4. all records regarding complaints made by the applicant about other individuals during her employment in the named service area and all records related to follow-up recommendations and/or actions taken by the HSE
5. all records relating to the applicant's request to transfer to a different service area of the HSE from 2005 onwards, including records held in at least four named areas of the HSE.

For the purposes of this review, it is sufficient to note that further exchanges of correspondence followed, during which certain records were released. The exchanges included a request by the applicant for an internal review of the HSE's original decision in the ground that the HSE had not released all relevant records. On 1 October 2017 the HSE issued an internal review decision in which it indicated that it had released all records it located in respect of the request, with the redaction of certain information relating to third parties under section 37.

On 12 November 2017 the applicant sought a review by this Office of the HSE's decision on the ground that the HSE had not released all relevant records, in particular those related to part 5 of her request. During the review, both the HSE and the applicant were invited to make submissions to this Office and both did so. The HSE provided further clarification in relation to certain issues raised by the applicant in the course of this review and Ms McCrory of this Office provided the applicant with those details. In response, the applicant indicated that she was not satisfied with the clarifications provided. She raised further concerns, and it was on this basis that the review proceeded.

I therefore consider it appropriate at this point to bring this review to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the HSE as outlined above and to communications between this Office and both the applicant and the HSE on the matter.

Scope of Review

On 22 November 2017, this Office informed the applicant that it had accepted the review on the basis of the HSE's failure to provide the applicant with all records relating to part 5 of her request and it asked her to confirm that she was satisfied with this approach. In her response, the applicant did not take issue with the approach outlined.

Accordingly, this review is solely concerned with whether the HSE was justified in refusing to release any addition records relating to the applicant's request for a transfer to a named service area of the HSE from 2005 onwards.

Preliminary Matter

The applicant's FOI request was very poorly handled by the HSE. The HSE should be fully aware of the need to ensure that requests that cross a number of its functional areas are centrally managed to ensure that all relevant parts are processed and within the time-frames set out in the Act. If the HSE feels it necessary to issue separate decisions, this should be made clear to the requester so that s/he is fully aware of the particular areas covered by each decision and of the totality of the decisions she can expect to receive.

Analysis and Findings

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In summary, in its submission to this Office, the HSE stated that it conducted searches of relevant locations including those suggested by the applicant and consulted with relevant staff. It also provided details of records management policies and clarifications of same to this Office. Some records were located on foot of the HSE conducting broader searches with a greater number of search criteria. On 12 April 2018 and 8 May 2018, the HSE released additional records it had located with some redactions of third party personal information, most of which were duplicates of records already provided to the applicant either as part of this case, or on foot of other FOI requests that the applicant had made to the HSE. However the applicant argued that further relevant records had not been provided to her.

In response, the HSE stated that it was unable to locate any further records related to part 5 of the applicant's request apart from the small number of records it released to the applicant. It noted that due to the record management practices in place, some records may have existed but were no longer available. In relation to transfers, the HSE stated that it was a matter for line managers and the staff, and no records would be held by HR until the matter was formally agreed and finalised between the two relevant areas. It stated that therefore, the HR department did not hold records relevant to part 5 of the applicant's request in this instance, as there was no formal finalised agreement on the matter.

As part of its submissions, the HSE provided information on its records management policies. It stated that there is no policy document for HSE staff in relation to the management and retention of emails in staff email accounts, and it is therefore up to individual staff to maintain their mailboxes, which have limited storage capacity. It stated that it is up to individual staff whether emails from their email accounts are archived or deleted when this storage capacity is reached.

I note that in her submissions the applicant contended that the HSE stores information on a secure server which is backed up onto a cloud system and held for 10 years. When asked for clarification the HSE stated that information is retained on a HSE IT server in the relevant section of the HSE (CHO3), and this area does not use a cloud system for the storage of records/emails. It further stated that it is for each member of HSE staff to determine what records are required and should therefore be saved to the HSE server, and therefore it may be the case that some records did exist at one point but can no longer be found.

The HSE further stated that much communication between the relevant parties in relation to the transfer possibility likely took place informally via phone call or conversations in person, rather than through email, and that this may be why there are only some records related to part 5 of the applicant's request when she believes there should be more.

On the matter of the steps taken by the HSE to locate the records sought, I note that Ms McCrory has already provided those details to the applicant. Therefore, I do not propose to repeat them in full here, although I can confirm that I have had regard to them for the purposes of this decision. In its submission, the HSE stated that it consulted with relevant staff members, particularly those involved in the matter of a transfer possibility for the applicant.

The HSE stated that the ICT Department were also requested to conduct searches of all relevant electronic systems. It further stated that initially it conducted electronic searches using the applicant's name, but subsequently broadened its searches to include generic terms related to transfers in order to locate any records that may have been missed. The HSE stated that searches were also conducted of email accounts and hard copy files. It stated that back-up files were also searched. The HSE noted that the types of record that would normally exist in relation to part 5 of the applicant's request would be held locally on a personnel file, and this was also searched. It stated that searches were also carried out on its Data Storage Management facility, which is a system used to store hard files, but no records related to the applicant were located.

The applicant in her submissions contended that an email regarding her resignation should exist, and that there should be records containing communication between the two areas of the HSE regarding her resignation, given that she had been seeking a transfer up until the time of her resignation. The HSE in its submission stated that no records containing such emails could be found after several searches of the locations detailed above. It also stated that in relation to resignations, the only record that is required to be retained is the HR106 'Leaving Form' as this is the official record of a resignation by a member of staff.

I understand that the applicant will be disappointed that no further records are available. However, it is important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records an applicant knows to exist have not been located.

Having considered the matter carefully, I am satisfied that, at this juncture, the HSE has taken all reasonable steps to ascertain the whereabouts of the relevant records. I find that the HSE was justified in refusing to grant access to the further records sought under section 15(1)(a) on the ground that the records in question do not exist or cannot be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to further records under section 15(1)(a) of the FOI Act.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator