Whether the HSE was justified in refusing access to further records relating to the applicant’s Your Service Your Say complaint on the ground that no further relevant records exist or can be found

24 February 2021

Background

In a request dated 5 July 2020, the applicant sought access to all records relating to a complaint which he made using the HSE’s Your Service Your Say service regarding its Mental Health Service in a specified area.  

As the HSE did not respond to his request within the required four week timeframe, the applicant sought an internal review of the deemed refusal of his request. On 28 August 2020, the HSE wrote to the applicant and indicated that while a response was due to issue by 31 August, it would be unable to meet this deadline due to the COVID-19 pandemic and it said the applicant should expect its internal review decision to issue by 18 September.  

Following correspondence from this Office, the HSE issued a late internal review decision or “effective position” on 30 October 2020. It said it had decided to grant the request in full and it released 45 pages of records relating to the relevant complaint. On 4 November 2020, the applicant asked this Office to proceed with a review of the HSE’s decision. He suggested that further relevant records should exist.

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 the HSE in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s Your Service Your Say complaint on the ground that no further relevant records exist or can be found.

Preliminary Matter

As has previously been explained to the applicant, 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.

Analysis and Findings

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 his correspondence with this Office, the applicant noted that one of the records released suggested that a meeting was to take place involving four named officials of the HSE. He said he received no records of that meeting or of a meeting of 6 August 2020 in he was involved. He alleged a further meeting took place but said he had no specific details of that meeting. He identified six named officials who he believes may have participated in the meetings in question. He also suggested that some of the emails were incomplete as the full exchanges were not always included. He referred, for example, to an email that mentions a reply and he argued that he did not receive the reply.

During the course of the review, the HSE provided submissions to this Office in which it outlined details of the searches carried out and provided its explanation as to why no further relevant records could be found.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, it said the individuals identified by the applicant were asked on a number of occasions to carry out searches for records relating to the applicant in light of his multiple FOI requests and that they are confident that all reasonable searches have been carried out.

The HSE said the meeting identified by the applicant involving the four identified individuals did, indeed, take place, but that no records were kept of that meeting. It said the purpose of the meeting was to help assist in explaining the complaints process and the requirements of the need to furnish responses to allow the Complaints Officer respond to the complaint in an informed manner. It said a meeting had been scheduled with the applicant for 30 April 2020 but was cancelled at the time due to the introduction of Covid restrictions and public health measures in place at that time. It said one other meeting occurred on 6 August 2020 which the applicant attended. It said the applicant will be aware that no minute taker was present at the meeting and that one of the officials, who acted as facilitator, confirmed that no notes or minutes were taken at this meeting. On the matter of missing emails, the HSE confirmed that the reply referred to in the email identified by the applicant was, indeed, released.

In his subsequent submission, the applicant raised a number of concerns about the manner in which the HSE handled his complaint and the purported explanation for the purpose of the meeting involving the four named individuals. He argued that minutes of meetings should have been kept.

As I have explained above, the appropriateness, or otherwise, of the HSE’s actions in dealing with the applicant’s complaint are not matters that this Office can examine. Furthermore, it is important to note that the FOI Act is concerned with access to records held by pubic bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have.

It is, in essence, the HSE’s position that no further relevant records can be found or do not exist after all reasonable steps to ascertain the whereabouts of relevant records have been taken. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the HSE was justified in refusing access to further records apart from those already released on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the HSE to refuse access, under 15(1)(a) of the FOI Act, to any further records other than those already released on the ground that no further relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator