Ms X and Health Service Executive

• Judge: Senior Investigator
• Judgment Date: 26 April 2022
• Case Outcome: The Senior Investigator varied the decision of the HSE. He found that it had not taken all reasonable steps to ascertain the whereabouts of relevant records and he directed it to undertake a fresh decision-making process on the request. He found that it was not justified in refusing access to certain records, in whole or in part, under sections 30(1)(b) of 36(1). He found that certain parts of the records at issue were exempt under section 37. He directed the release of the remaining records, in whole or in part.
• Court: Information Commission
• Record Number: OIC-102121-X6G7P4
• Respondent: Health Service Executive

Whether the HSE was justified in refusing access to further records comprising correspondence to and from a named staff member relating to a named nursing home, under section 15(1)(a) of the FOI Act on the basis that it holds no further records coming under the scope of the request and whether the HSE was justified in refusing access to records relating to the nursing home under sections 30(1), 36(1) and 37(1) of the FOI Act

26 April 2022

Background

On 10 August 2020, the applicant submitted a request to the HSE for all correspondence to/from, and all reports send to or created by the Chief Officer of the HSE Midlands, Louth/Meath Community Health Organisation 8 regarding a named nursing home from 1 April 2020 to 30 May 2020. The HSE failed to issue a decision on the applicant’s request, and on 6 October 2020 she requested an internal review of the deemed refusal of her request. The HSE again failed to issue a decision, following which the applicant sought a review by this Office of the HSE’s deemed refusal of her internal review request.

The HSE subsequently issued its position on the request on 8 January 2021. It released 25 records with the redaction of information from each record under sections 30, 36 and 37(1) of the FOI Act. It withheld one record, page 62, under section 30 of the FOI Act. On 11 January 2021, the applicant indicated that she wanted the review to proceed and she argued that the HSE ought to hold further records falling under the scope of her request.

During the course of the review, the applicant confirmed that she wished to remove the price quoted for cleaning of the nursing home from the review. She also confirmed that she did not wish for any information which had been dealt with in case 111267 to be reviewed again

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and the HSE and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing access to further records falling within the scope of the applicant’s request under section 15(1)(a) of the FOI Act and whether the HSE was justified, under sections 30(1)(b), 36(1) and 37(1) of the Act, in refusing access to further information contained in the records identified.

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 Commissioner's role 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 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.

During the course of this review, this Office sought details of the searches carried out by the HSE in order to identify records falling with the scope of the request. In short, the HSE stated that it conducted searches of the inbox, sent folder and archived folders of two relevant email accounts for the dates 1 April 2020 to 30 May 2020. The HSE stated that the only search term used was the name of the nursing home.

The HSE also explained that it searched the post register for relevant correspondence. That post register records the details of when correspondence was received, from whom and the nature of the correspondence. The HSE stated that the post register did not contain any relevant entries for the relevant dates and therefore it was satisfied that it holds no relevant hardcopy correspondence.

In her application for review to this Office, the applicant said she was aware that the Chief Officer was copied into correspondence that had not been identified in response to the current request. She also argued that the because of his role, the Chief Officer must have been aware of a major operational decision taken in respect of the nursing home in April 2020, but that this was not evidenced by the records released.

I note from the information released to the applicant that the matter to which the applicant drew attention in her application for review is discussed in some of the records already provided to her. I note, however, that the applicant is of the view that further records discussing the matter ought to exist.

This Office asked the HSE whether the searches undertaken would have captured correspondence into which the Chief Officer would have been copied. In response, the HSE stated that such correspondence would have been captured by the searches undertaken. I accept that the searches undertaken of the inbox and archive of the relevant email accounts would have included emails received as a copied party.

The HSE, quite reasonably in my view, limited its searches to relevant email accounts and used the date parameters agreed by the applicant. I note, however, that in searching for relevant records the only search term used by the HSE was the precise term “[Name] Nursing Home”. It seems to me that such a limited search cannot reasonably be described as the HSE having taken all reasonable steps to ascertain the whereabouts of relevant records. It seems to me to be quite possible that the senders of the emails could reasonably have referred to the home without using the full title as contained in the search used. Moreover, the HSE did not indicate if it had interrogated the emails returned in its initial search to determine if other relevant correspondence sent to or by the Chief Officer in the relevant period might exist.

In the circumstances, I find that the HSE has not taken all reasonable steps to ascertain the whereabouts of records falling within the scope of the applicant’s request. I find, therefore, that it was not justified in refusing access, under section 15(1)(a), to any further relevant records other than those already identified.

I consider the most appropriate course of action to take at this stage is to annul the decision of the HSE in respect of the searches carried out, the effect of which is that it must consider the applicant’s 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 she is not satisfied with the HSE’s decision.

Section 37(1)

The HSE relied on section 37 of the FOI in redacting two broad categories of information from the records falling within the scope of the applicant’s request. It redacted email addresses, telephone numbers and names from pages 1 to 19, 21 to 23, 25 to 28, 30 to 37, 39 to 40, 42, 43, 45 to 48, 50, 51, 53 and 56 to 58 of the records. It also redacted information from pages 7, 9 to 12, 16, 18 to 24, 27 to 29 ,35 to 38, 40 to 45, 48, 49, 52, 54 and 58 to 60 on the basis that it comprised information about identifiable individuals, including a personal opinion of the owner of the nursing home.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The vast majority of the emails addresses,...