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Case Number: 150374

Whether the Hospital was justified in its decision to refuse access to particular records sought relating to complaints by named individuals on the basis that section 15(1)(a) of the FOI Act applied

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

Background

In his FOI request of 8 April 2015, the applicant sought access to all records relating himself in correspondence to and from various named individuals relating to complaints by named individuals. The Hospital acknowledged the request and informed the applicant that he should normally expect to receive a decision by 6 May 2015. On 28 April 2015, the Hospital wrote to the applicant, pursuant to section 14(1)(a) extending the time for consideration of the request and informed him that he should now expect to receive a decision no later than 27 May 2015. On that date, the Hospital notified the applicant of a further delay. The applicant made an internal review request on 5 June 2015. A decision, dated 25 June 2015, was issued by the Hospital's internal reviewer, in which 167 pages of records were identified as relevant. Access to some records was granted in full, others were refused in full or in part on the basis that the withheld information was either outside scope of the request or that section 30(1)(a) or section 37 of the FOI Act applied. There was considerable further correspondence between the applicant and the Hospital on the matter. However, the applicant submitted an application for review to this Office which was received on 2 November 2015. Subsequently, further material was released by the Hospital.

The extent of the correspondence between the applicant and the Hospital, including the release of multiple batches of records, made it difficult to identify which were the relevant decision making records and what issues remained to be addressed in the review. It subsequently emerged that the decision making records provided by the Hospital to this Office did not fully reflect the sequence of events. At the request of the Investigator, the Hospital provided copies of further correspondence. In order to conduct a review, it is essential that this Office establish that it has the jurisdiction to do so and can determine accurately the scope of the review to be undertaken.

In the circumstances of this particular case, given that the both the scope of the review and the extent of the records to be examined was unclear, this Office asked the applicant by email of 3 February 2016 to clarify what issues remained outstanding that he wished to have addressed in the review. This Office considers that it is not unreasonable for the Commissioner to expect and receive the applicant's cooperation in securing a thorough and efficient review. Despite two further emails and a number of attempts to contact the applicant by phone, no response had been received by 26 February 2016. At that stage, it remained the case that the Investigator was not in a position to progress the review. This Office wrote to the applicant informing him that the review would be discontinued pursuant to section 22(9)(a)(iv) of the FOI Act if the clarification sought was not provided by 4 March 2016. On 3 March 2016, the applicant clarified that there were two outstanding items and that all other matters had been dealt with. The Investigator was satisfied that these two items were within the scope of the original request and I agree that this is the case.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Hospital, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Hospital to refuse access to the two items identified by the applicant in his letter to this Office of 3 March 2016 was justified on the basis of the exemptions claimed.

Preliminary Matters

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

The applicant sought access to two items as follows:

1. [Former CEO's ] proposal in correspondence between [Named person] and [named person].
2. Notes of a meeting held with [Chairman of the Hospital Board] and [Hospital CEO] in July and August 2014.

The Hospital's position is that access to these items was refused on the basis that they do not exist or cannot be found i.e. that section 15(1)(a) of the FOI Act applies.

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

In relation to Item 1, the Hospital stated that the "proposal" referred to is actually referenced in correspondence between [former CEO] and another named individual. Having examined all of the correspondence relating to this FOI request provided by the Hospital, it seems to me that the first reference to a "proposal" was made by the applicant in a letter to the Hospital of 17 July 2015, in which he identified it, among other items, referred to in the records which had been released to him and, which had not been included in the records released. The Hospital refused access to the "proposal" in a letter of 11 September 2015 on the basis that section 15(1)(a) applied. The terms used to describe the "proposal" in the letter of 17 July 2015 were not the same as those used by the applicant in his letter received by this Office on 3 March 2016. The Investigator put this to the applicant and also asked him to provide evidence of the existence of the "proposal" i.e. a copy of the correspondence in which the "proposal" was originally referred to or some other relevant particulars. No response was received from the applicant. On the basis of the position of the Hospital and the fact that the applicant has not refuted that position, it is reasonable for me to conclude that section 15(1)(a) applies to Item 1 above on the basis that no such "proposal" exists as the applicant narrowed the scope of the review so as to exclude any "proposal" mentioned in correspondence between [former CEO] and any other named individual. In any event, the Hospital's response to this Office's "search questions" dealt with the "proposal" as it was described in the letter of 17 July 2015 and found no such record.

In relation to Item 2, the Hospital stated that it has confirmed with the CEO that no further documentation exists and that it has received confirmation from the Chairman that he does not have any such documentation.

The Hospital provided details of the records management practices it says are in place for the relevant areas of the Hospital. It also provided details of the searches it says were undertaken of electronic and hard copy records in its efforts to identify both items above. These included searches of scanned materials, shared file storage on the Hospital's server, and emails to which the parties concerned were a party. It stated that the relevant personnel have been asked for any relevant records held by them. According to the Hospital, repeat searches were carried out of both manual and electronic files. It stated that no further documentation was located.

In the absence of any further particulars from the applicant, which might assist me in identifying further potential "search" issues to be raised with the Hospital, and given the steps the Hospital says were taken to search for records, it seems to me that, at this stage, reasonable steps have been taken by the Hospital to search for the records. I note also the extent of the correspondence between the applicant and the Hospital before and after the application for review being made to this Office. I am satisfied, on the basis of the information available to me, that the information sought does not exist or cannot be found after all reasonable steps have been taken to search for it and I find that section 15(1)(a) applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital and find that section 15(1)(a) of the FOI Act applies to the particular information sought.

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.

Elizabeth Dolan
Senior Investigator