Whether the HSE was justified in its decision to refuse access to CCTV footage and records relating to a staff monitoring policy under section 15(1)(a) of the FOI Act on the grounds that the records sought do not exist  

22/11/2018

Background

On 5 October 2017 the applicant submitted a request to the HSE for "records of the use of CCTV cameras to monitor staff" in a specified Commmunity Nursing Unit. At the HSE's request, the applicant clarified his request as including "records which outline the policy about monitoring staff using CCTV in [the Unit] and records relating to staff members during work"

On 8 November 2017, the HSE issued its decision on the request in which it stated there CCTV monitoring was in the public areas of teh Unit for the safety of residents, staff, and their belongings. It stated that there was no CCTV within the building and no monitoring of staff within the building. On 7 March 2018 the applicant sought an internal review of that decision. The HSE affirmed its original decision on 10 September 2018. On 14 September 2018, the applicant sought a review by this Office of that decision. 
 
During the course of the review, Ms Hannon of this Office provided the applicant with details of the explanation given by the HSE as to why it does not hold the relevant records and she informed him of her view that the HSE was justified in refusing the request under section 15(1)(a) of the FOI Act. The applicant has indicated he wishes the review to proceed. I therefore consider it appropriate to conclude this review by means of a formal, binding decision. 

In carrying out my review, I have had regard to the correspondence between the HSE and the applicant. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.

Scope of the Review

This review is concerned solely with whether the HSE was justified, under section 15 (1)(a) of the FOI Act, in refusing the applicant's request for records relating to a staff monitoring policy and CCTV records of a specified nursing unit on the grounds that the records sought do not exist. 
  

Analysis and Findings

Section 15(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 role of this Office in cases such as this 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 

In submissions to this Office, the HSE stated that until approximately 18 months ago, CCTV existed only at the front door of the Unit but that following an incident whereby an intruder accessed the Unit, additional CCTV cameras were installed in the public reception area and outside the Unit covering the car park and general public walkway areas as a security measure. It stated that the sole purpose of the CCTV is for crime prevention and for the safety of residents, staff and visitors who live, work and visit the Unit. It further stated that it has no records which outline the policy for monitoring staff as no such policy exist and that CCTV is not used to monitor staff. In essence, its position is that it hold no records of the type sought by the applicant.

Given the nature of the records sought by the applicant, in circumstances where the HSE has no policy for the use of CCTV to monitor staff and where it has confirmed that it does not use CCTV to do so, and in the absence of any evidence to suggest otherwise, I am satisfied that the HSE was justified in refusing the request on the ground that the records sought do not exist.

For the sake of completeness, I should add that I do not believe that the applicant's request included a request for copies of the CCTV records captured by the CCTV cameras.  Even if it did, I would expect such records to contain personal information relating to individuals other than the applicant, namely images of those individuals. Such information falls to be protected under section 37(1) of the FOI Act, subject only to other provisions of the section. Based on the information currently before this Office, it seems to me that the HSE would have been justified in refusing access to such records sought under section 37.

 
Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse access to the records sought by the applicant under section 15(1)(a) of the FOI Act on the grounds that the records sought do not exist.

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