Mr T and the Health Service Executive

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 17 August 2015
• Case Outcome: The Senior Investigator found that the HSE was not justified in its decision to refuse access to the records sought on the grounds cited. He annulled the decision of the HSE and directed that a fresh decision making process be undertaken.
• Court: Information Commission
• Record Number: 150137
• Respondent: HSE South

Whether the HSE was justified in refusing a request for copies of correspondence of a named HSE official with various parties relating to the applicant on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the HSE on 9 February 2015 for access to certain correspondence between a named official of the HSE and named third parties relating to him from January 2012 onwards. As the HSE failed to issue a decision in response to the request within the statutory deadline provided by the FOI Act, the applicant sought an internal review on 14 April 2015. The HSE issued its internal review decision on 5 May 2015, in which it refused the request on the grounds that the records requested do not exist or cannot be found. The internal review decision stated that the HSE had "been unable to locate such records requested due to the fact that (the named officer) has since retired (July 2013), his email account has been shut down and where access to complete mailboxes has not been possible". The applicant applied to this Office for a review of that decision on 6 May 2015.

Mr. Christopher Campbell of this Office contacted the HSE on 24 June 2015, requesting details of searches undertaken in relation to the request. While the HSE has not formally responded to Mr Campbell's queries to date, it indicated that certain records had been located and would have to be examined for relevance. Accordingly, I now consider that this review should be brought to a close by means of a formal binding decision.

In conducting this review I have had regard to the communications of the HSE on this case, to the submissions of the applicant, to the internal review decision of the HSE, and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records requested under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides...