Whether the HSE was justified in refusing access to access, under section 15(1)(a) of the FOI Act, to records related to the proposed closure of the Owenacurra mental health centre on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken 

21 June 2022

Background

In a request dated 12 August 2021, the applicant sought access to records, from 1 January 2016 to the date of her request, of any communications / meeting minutes regarding:

• the proposed closure of the Owenacurra Centre, Middleton, and
• the possible use of land at the site of the centre or the use of the premises for anything other than its current use as a residential mental health facility.

On 31 August 2021, she submitted a second request relating to the centre. She sought access to:

• records of any communications from January 2019 that mention the Owenacurra Centre to or from all email accounts used by certain Cork/Kerry mental health management staff,
• records of any meeting discussions involving any members of HSE mental health management from January 2019 that mentioned the Owenacurra Centre, and
• records of any meetings about the funding of a renovation of the Carraig Mór facility.

The HSE's decision on the applicant's second request is the subject of a separate review by this Office.

As the HSE did not issue a decision on the first request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request on 8 December 2021. In its internal review decision, the HSE refused the request under section 15(1)(a) of the Act on the ground that the records sought could not be found. On 7 February 2021, the applicant applied to this Office for a review of the HSE's decision, wherein she said she was aware of the existence of relevant records.

During the course of this review, and following communications with this Office, the HSE located and released a number of records relating to Owenacurra Centre on two different occasions:

• On 22 April 2022 the HSE released two records, that although outside of the requested time span, relate to the future use of the premises of the Owenacurra Centre.
• On 16 May 2022 the HSE released 10 further records that were not initially considered to fall within the scope of the request.

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 her application for eview and to the submissions made by the HSE in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to any further records relating to the applicant's request other than those already released on the ground that no further records exist or could be found after all reasonable steps to ascertain their whereabouts had been taken.

Analysis and Findings

Section 15(1)(a) of the FOI Act 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 this Office in such cases 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.

During the course of this review, the HSE provided this Office with submissions wherein it described the background to the proposed closure of the Owenacurra. It said Cork Kerry Mental Health Services received a letter from the Mental Health Commission on 17 June 2021 in relation to the state of repair of the Owenacurra Centre building. It said it also received a letter from HSE Estates on 18 June 2021 with a set of reports relating to the Centre. It said the Chief Officer Cork/Kerry (CKCH), HSE Estates and Mental Health Services had a meeting on 22 June 2021 to explore the options available to it in light of the available information. It said the meeting was not minuted. It said that on foot of this discussion, the Chief Officer CKCH made the decision to close the Centre and the decision was formally communicated to residents and staff of the Centre and to the Mental Health Commission the following day. It said the letter to the Commission was not considered to fall within the scope of the request as it did not relate to a meeting re the proposed closure of Owenacurra but that it was subsequently released to the applicant as part of her second FOI request.

The HSE added that Senior Management in Cork Kerry Mental Health Services advised that no minutes exist regarding the possible use of the land at the Owenacurra site. It referred to a ministerial briefing dated 25 June 2021 which stated -�The future of the entire site will be considered at a later stage.-� It explained that the closure of the centre evolved after the applicant made her request. It said the applicant received a significant amount of information from it in relation to the Centre. It said this information was issued in its response to the applicant's second request (on 31 august 2021) and via multiple Parliamentary Questions which were submitted by the applicant.

In response to the Investigating Officer's request for details of the searches undertaken to locate the records sought by the applicant, the HSE said it understood the scope of the request to focus on minutes of meetings in relation to the proposed closure of the Owenacurra Centre and that a wider focus on other communications in relation to the Centre was not considered. It said that as the request was confined to minutes of meetings in relation to the proposed closure of the Centre, no search was conducted for any such minutes as senior management was aware that no such records (i.e. minutes) had been created. It said the key individuals who were involved in the decision to close the Centre were the Acting Head of Service and the Acting General Manager and that both individuals were consulted with regarding the request.

It is evident from the HSE's submissions to this Office that it took an unduly narrow interpretation of the applicant's request. While the applicant requested minutes of meeting about the proposed closure of the centre, she also sought any communications about the closure. Notwithstanding the HSE's comments that a significant amount of information has been provided to the applicant about the centre, given its submissions to this Office I simply cannot find that it has undertaken all reasonable steps to locate the records at issue in this case. As such, I find that the HSE was not justified in refusing to grant access to any further relevant records under section 15(1)(a) of the FOI Act as it has not taken all reasonable steps to ascertain the whereabouts of relevant records.

I therefore consider that the most appropriate course of action to take in this case is to annul the decision of the HSE and to remit the matter back to the HSE to consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The HSE has agreed to process the request afresh. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the HSE's decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision to refuse the applicant's request under section 15(1)(a) of the Act and I direct it to conduct a fresh decision making process on the request.

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