Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to records of emails to or from the email accounts of certain named CHO mental health service management staff that indicate when CHO mental health management staff were scheduled for first dose vaccinations, on the grounds that the records sought do not exist.

22 August 2022

Background

The applicant in this case was represented by a third party in her engagements both with the HSE and with this Office. Accordingly, all references to communications with the applicant should be taken to include communications with her representative.

In a request dated 15 November 2021, the applicant sought access to records to or from all email accounts used by CHO mental health service management staff holding the following positions:

• Area Administrator
• General Manager
• A/General Manager
• Executive Clinical Director
• Head of Mental Health Services
• A/Head of Mental Health Services
• Chief Officer

within the period 21 December 2020 to 28 February 2021, relating to;

1. The Covid-19 vaccination schedule for CHO 4 mental health service administration and management staff, including staff based in the Model Business Park, Cork;
2. The Covid-19 vaccination schedule for acute and long-stay patients and nursing staff of St. Stephen-�s Hospital, Glanmire.

• To illustrate the dates of vaccinations for the different groups: administration, management staff and nursing staff, and acute/long-stay patients.
• To include any communications to/from clinical staff, clinical management and union representatives or other representatives of staff and patients during this time period.

On 17 November 2021, the HSE informed the applicant that the request could not be processed in its current format as -�the processes used to facilitate staff vaccinations were not formally drafted as they were interim in nature pending full functionality of the Covax IT system and a registration portal, and also ad hoc short notice scheduling to avoid wastage of vaccines.-� The HSE also said that the vaccination process involved the collation of personal information and that it could not be disclosed without the consent of the parties involved. It added that the request would require extensive searches and it provided details of the search and retrieval fees provision. It invited the applicant to amend or resubmit her request.

On 18 November 2021 the applicant clarified her request. She refined it by removing -�administration staff-� and specifying -�first dose-� vaccination schedules. She said she did not wish to obtain schedules of named patients. In its decision dated 16 December 2021, the HSE decided to grant access to all of the emails it had identified as coming within the scope of the refined request. On 24 January 2021 the applicant sought an internal review of the HSE-�s decision on the ground that the records released did not indicate when CHO mental health management staff were scheduled for first dose vaccinations. On 24 February 2022, the HSE affirmed its original decision on the ground that the schedule referred to does not exist. On 25 March 2022 the applicant sought a review by this Office of the HSE-�s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the HSE-�s submissions wherein it outlined the searches undertaken to locate the records sought and its reason for concluding that no additional records exist. The Investigating Officer invited the applicant to make further submissions on the matter, which she duly did.

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 correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE-�s position is that the records sought, namely records of emails to or from the email accounts of certain named CHO mental health service management staff that indicate when CHO mental health management staff were scheduled for first dose vaccinations, do not exist. This is, in essence, a refusal to grant access to the records sought under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant-�s request.

Analysis and Findings

Section 15(1)(a) of the 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. The role of this Office in such a case 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the HSE provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submission, the HSE said that all records had been processed and managed in line with the HSE Record Retention Policy, the HSE Records Management Policy and the HSE ICT Policy. It provided this office with links to the available full policy documentation viahttps://www.hse.ie/eng/gdpr/data-protection-covid-19/record-retention-policy-2013.pdfandhttps://www.hse.ie/eng/services/publications/pp/ict/. It said all records are maintained in electronic form only and no records were destroyed.

The HSE said searches were carried out in the email accounts of the management staff named by the applicant in her request. It said the email accounts of the relevant individuals are the only locations where records related to the request could be found and that no correspondence relating to the request is stored in any shared folder.

As outlined above, the entirety of the search details was provided to the applicant by the Investigating Officer. In response the applicant said the HSE-�s response implies that no records exist identifying when Covid-19 vaccinations were scheduled for the Cork-based mental health managers who were, in some cases, controlling the rollout of the vaccine programme to vulnerable patient and staff groups in their local services. She noted, on the other hand, that she been provided with extensive information on the scheduling of vaccinations for the patient groups in particular but also clinical staff in the Cork mental health services. She argued that if no relevant records exist as per the response, then all scheduling of COVID vaccinations for mental health management staff happened verbally. She argued that this would appear to be in breach of principles of transparency & accountability in the roll-out of the vaccine programme in the Cork Mental Health Services.

The Investigating Officer sought further clarifications from the HSE on the matter. In response, the HSE said that by way of background, from late December 2020, healthcare workers including staff at the CHO4 Mental Health Service were offered appointments in centralised vaccination clinics which were set up specifically to vaccinate staff in accordance with guidance issued by the HSE outlining the sequencing of vaccinations for healthcare workers. It said staff were also offered vaccination at end of day clinics set up as part of other vaccinations streams to ensure that all vaccine supplied was used and that there would be no dose discarded. It said vaccination records for healthcare workers are recorded and retained on the Covax IT system in the same way as for all members of the public, in the format of individual clinic records. It said the records on Covax are created and maintained on the basis of individual identifiers such as name, date of birth, home address, PPSN, mobile number etc. and the system does not contain the information requested i.e. on the basis of numbers of healthcare workers vaccinated by profession, grade or place of work. It confirmed that no written record of the scheduling of vaccination records for staff was created.

In a subsequent submission, the HSE explained that the campus at St Stephen-�s hospital is comprised of a number of units, one of which is registered under the Health Information and Quality Authority-�s remit for residential units for older persons. It said staff working in this facility would have been included in the initial phase of the vaccination programme.  It said other units on this campus are registered under the auspices of the Mental Health Commission as residential units for those with mental health needs. It said residents aged over 65 in mental health units were included in an expansion of the national vaccination programme from the week of January 25th 2021, and staff working in these units were offered vaccination on site where supply allowed only, given that the primary vaccination programme for staff through centralised clinics had also commenced at this stage.

The HSE added that a key principle set out in national HSE guidance on the delivery of the vaccination programme is that no doses of the vaccine should be wasted i.e. that all available doses within vials prepared for vaccination clinics should be used. The guidance also stated that centres should establish standby lists of healthcare workers who were available at short notice and randomly selected from the lists for vaccination where the alternative was that vaccine doses expired.  The HSE said that at this early stage in the vaccination programme, the Covax IT system which is used to manage the vaccination programme, did not have the functionality to schedule appointments.  Therefore, in accordance with the guidance, during the initial stages of the Covid-19 Vaccination Programme in Residential Care Facilities for Older Persons, end of day staff vaccination hubs were set up at some locations including St Stephen-�s at short notice. The HSE said this was to ensure that every vaccine supplied to Cork Kerry Community Healthcare was used within what was then a very short shelf-life. The primary location for healthcare worker vaccinations remained in the centralized clinics, augmented by the aforementioned hubs set up to fully utilize the supply of vaccine to each location on a given day.

The Investigating Officer provided the applicant with details of the HSE-�s subsequent submissions. In response, she argued that the dates for the vaccination of patients/residents of a number of mental health facilities in Cork, including St. Stephen's Hospital, is publicly accessible is because the vaccination schedule of these patients/residents was part of a national sequencing programme. In essence, she argued that the vaccination of public servants, including HSE managers, was also subject to a national sequencing programme and that details of when the relevant health managers were offered first dose vaccinations should also be on public record.

It is important to note that this Office has no role in examining the actions of the HSE in the scheduling of first dose vaccinations. Moreover, the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request. The HSE-�s position is that the records sought, namely records of emails to or from the email accounts of certain named CHO mental health service management staff that indicate when CHO mental health management staff were scheduled for first dose vaccinations, do not exist. This was due, in essence, to the fact that staff were offered vaccination at end of day clinics set up as part of other vaccinations streams to ensure that all vaccine supplied was used and that there would be no dose discarded.

The question I must consider is whether the HSE has taken all reasonable steps to ascertain the whereabouts of the records sought. Having regard to the details of the searches undertaken and of its explanation as to why the records sought do not exist, I am satisfied that it has. Accordingly, I find that the HSE was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the ground that no such record exist or can 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, under section 15(1)(a) of the FOI Act, to records of emails to or from the email accounts of certain named CHO mental health service management staff that indicate when CHO mental health management staff were scheduled for first dose vaccinations, 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