Whether the HSE was justified in refusing access to records relating to the applicant and the outsourcing of certain services on the basis of section 15(1)(a) of the FOI Act

16 December 2022

Background

On 21 March 2022, the applicant made an FOI request comprising two sub-parts. The first part of the request sought access to records relating to the -�outsourcing of occupational health services-� in named areas between 1 March 2020 and 21 March 2022. The second part sought access to all communications between National Human Resources in the HSE and named individuals in Human Resources at the Royal College Surgeons Ireland (RCSI) regarding the applicant or a specific occupational health service between 1 March 2020 and 1 March 2022.

The HSE did not issue a decision within the statutory four-week timeframe, thus effectively refusing the request. On 17 May 2022, the applicant sought an internal review of the effective refusal. On 11 July 2022, the applicant applied to this Office for a review of the deemed refusal. Following engagement from this Office, the HSE issued the applicant with its effective position. In a decision dated 28 July 2022, it part-granted the applicant-�s request on the basis of section 15(1)(a) of the FOI Act. The decision stated that it was -�the response from HSE National HR-�. On 22 August 2022, the applicant applied to this Office for a review of the HSE-�s decision.

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 submissions made by both parties and to subsequent correspondence. I have also examined the records which were released to the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In respect of the first part of the applicant-�s request, for documents relating to the outsourcing of occupational health services, the HSE applied section 15(1)(a) of the FOI Act. In its decision it states that -�no records exist in National HR relating to this part of the request-�.

In respect of the second party of the applicant-�s request, for particular correspondence, the HSE identified 19 records which it says come within the scope of the request. All records were released to the applicant in full. The applicant-�s position is that further records exist which have not been provided. As such, I have considered section 15(1)(a) in respect of this part of the request also.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing access to relevant records on the basis of section 15(1)(a) of the FOI Act.

Preliminary Matters                                                                                                        

I must first address the inadequacy of the HSE-�s decision-making process in this case. As noted above, the HSE did not issue an original decision to the applicant. On foot of a prompt from this Office, the internal review decision was issued late. During the course of the review, I sought an explanation for same from the HSE. In response, HSE National HR said that the FOI request was forwarded to three groups/units on receipt, one of whom was the National HR office. It said that the request was received by National HR in July 2022. The fact that the HSE is comprised of different units or divisions does not negate its responsibilities under the FOI Act. FOI bodies are required to appropriately process the FOI request to ensure that applicants receive a response within the statutory timelines. There is no shortage of guidance available online in respect of the processing of such requests. Both this Office and the Central Policy Unit of the Department of Public Expenditure and Reform have published comprehensive guidance documents and templates to support decision-making. I expect the HSE to take measures to ensure that FOI requests are processed in line with the statutory requirements, particularly where records may be held by a number of different units. It should also ensure that relevant staff have access to the guidance referenced above. 

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Finally, in his submissions to this Office, the applicant referenced certain concerns in respect of matters beyond the scope of the FOI Act. It is important to note that 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)

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 a case 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 their 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. I propose considering each part of the applicant-�s request in turn.

The first part of the request

As noted above, the first part of the applicant-�s request relates to records in respect of the outsourcing of certain occupational health services. In its decision to the applicant, the HSE stated that -�no records exist in National HR relating to this part of the request-�. It applied section 15(1)(a) on this basis.

This Office sought submissions in respect of whether records coming within the scope of this part of the request could be held by another division within the HSE. In its submissions, the HSE says that the FOI request, which was received by the HSE Consumer Affairs Department, was forwarded to the RCSI Hospital Group, the HSE Workplace Health and Wellbeing Unit and the HSE National HR office. It says that, having engaged internally, it now understands that the individuals in the RCSI Hospital Group who were initially contacted were unavailable and this was not notified to Consumer Affairs or the National HR office. It says that no decision issued from the RCSI Hospital Group in respect of this part of the request. Its position is that -�the records may exist but they would be held by the RCSI Hospital Group-�. It says that no documents in this regard are held by the National HR office. The FOI decision maker in National HR says that the request has now been forwarded to the relevant individual in the RCSI Hospital Group and that searches have commenced and that a decision will issue. The applicant has been informed of the HSE-�s position. He has notified this Office that no revised decision has issued to date.

In light of the HSE-�s confirmation that further searches are being undertaken and that a decision will issue, I am not satisfied that it has taken all reasonable steps to ascertain the whereabouts of relevant records relating to the first part of the applicant-�s request. In these circumstances, I find that the most appropriate course of action to take at this stage is to annul the decision to refuse this part of the request under section 15(1)(a). I understand that this will result in further delays for the applicant but I do not believe any other course of action would be appropriate. I direct the HSE to consider the request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.

For the sake of clarity, I also expect the HSE to consider whether all units which might hold records relevant to the request have been consulted. For example, I note that the HSE Workplace Health and Wellbeing Unit is referenced in its submissions but no further information has been provided in respect of searches conducted by that unit.

The second part of the request

The second part of the applicant-�s request relates to records of communications. The HSE released 19 records to the applicant in full. Its position is that no further records exist in relation to communications between National HR and named individuals in RCSI HR. The applicant-�s position is that further records must exist in respect of decisions made in relation to the outsourcing of services in particular areas. His position is that certain correspondence from RCSI HR -�points to [named staff member of National HR] being the decision maker-� in respect of a particular decision.

In communications with the applicant, this Office sought further information as to why he believes such records exist. In response, the applicant refers to correspondence from a named individual which he says -�suggests that there are records relating to this communication between [RCSI] and [National HR]-�. A copy of that correspondence was provided to this Office. Having reviewed the content carefully, I am not of the opinion that the correspondence necessarily indicates the existence of further records. Nonetheless, I sought submissions from the HSE in respect of same.

The HSE says that it conducted searches of relevant email inboxes. It says that relevant individuals were also consulted. It says that no hard copy records exist in the National HR office. With reference to particular correspondence which was released to the applicant, it says that no responses to same issued from the National HR office. It says that it disputes the contention that National HR approved any related course of action. It says that National HR was not involved in the decision-making in respect of a particular action referenced by the applicant.

As stated above, the remit of this Office does not extend to the examination or investigation of complaints about the administrative actions of FOI bodies. Having reviewed the submissions made by both parties, I have no reason to dispute the HSE-�s position that no further records relevant to this part of the applicant-�s request exist. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist. I am satisfied from the HSE-�s submission that, in the circumstances, it has taken all reasonable steps to look for relevant records. I find that the HSE has justified its decision to refuse access, under section 15(1)(a), to further records relevant to the second part of the applicant-�s request on the basis that no further records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE-�s decision. I affirm its effective decision to refuse, under section 15(1)(a) of the FOI Act, the request for records relating to specific communications other than those already released. I annul its decision to refuse, under section 15(1)(a) of the FOI Act, the request for records relating to the outsourcing of occupational health services in named areas. I direct it to carry out searches and a fresh decision-making process in respect of this aspect of 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.

Alison Connolly
Investigator