Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records concerning the decision to discontinue short stay services at St Brigid’s District Hospital, Carrick-On-Suir on the basis that no records exist or can be found

 

OIC-113559-L3Z1B9

 

Background

 

On 9 December 2020, the HSE issued a press release which stated that a Community Healthcare Centre was to be developed at St. Brigid’s District Hospital in Carrick-On-Suir. It went on to say that, as part of this development, short-stay inpatient care was being discontinued at the hospital. A representative of the HSE was interviewed about the changes on Tipp FM the following day. On 22 March 2021, the applicant submitted a detailed multi-part request to the HSE for various records concerning the decision to discontinue short-stay services at St Brigid’s. He stated that in the radio interview, reference had been made to St Brigid’s not being ‘fit for purpose’ and requiring extensive refurbishment and that the HSE’s Estates team/technical team had examined and given an opinion on the building in this regard. In acknowledging receipt of the FOI request, the HSE said that part A of the request, which concerned records of the request from the Chief Officer of South East Community Healthcare to the Estate/ Technical Services team for an examination/opinion in relation to St Brigid’s, would be dealt with by the Consumer Affairs Department. It added that parts B – F of the request, which were for records concerning the assessments carried out on the shortcomings of St Brigid’s as a facility and the refurbishments needed, would be transferred to the Estates Department of the HSE for processing.

 

In a decision dated 6 April 2021, the HSE refused part A of the request under section 15(1)(a) of the FOI Act. The decision stated that no such request [for an examination/opinion on St Brigid’s] had been made by the Chief Officer’s office to the Estate/Technical Services team. No decision was issued in relation to parts B – F. The applicant sought an internal review on 4 May 2021, pointing to the non-response to parts B – F of his request. He also noted that the Estates Department could potentially hold records relevant to part A of the request. No response was received within the three-week statutory timeframe. On 23 September 2021, the Estates Department of the HSE wrote to the applicant setting out its effective position, which was to refuse the request under section 15(1)(a) of the FOI Act on the basis that no relevant records exist or could be found. Outside of the FOI process, it attached the relevant pages of a 2018 HIQA report on St Brigid’s that was already in the public domain. The applicant sought a review by this Office of the HSE’s decision on 6 August 2021.

 

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 above exchanges and to the correspondence between this Office, the HSE and the applicant. I have decided to conclude this review by way of a formal, binding decision.

 

Scope of the review

 

This review is concerned solely with whether the HSE was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request on the grounds that no relevant records exist or can be found.

 

Preliminary Matters

 

Before I address the substantive issues arising, I would like to make some preliminary comments.  Firstly, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

 

Secondly, Section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the HSE to satisfy me that its decision was justified.

 

 

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 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.

 

In a submission to this Office, the applicant referred to a HSE Confidential Briefing Note on St Brigid’s Hospital dated 16 November 2020 that he had obtained through other channels, arguing that this document was at odds with the HSE’s position that no records relevant to his FOI request existed. He referred to the Chief Officer’s comments on Tipp FM in December 2020 stating that it was not plausible that records did not exist in relation to a request to the Estates Department to examine and give an opinion on St Brigid’s, or containing the Estates Department’s response and/or details of an inspection/examination, or indeed containing any communication between the Chief Officer and the Estates Department.

 

The HSE was asked to make a submission to this Office detailing the steps it had taken to search for records relevant to the applicant’s request and to set out its reasons for concluding that no records existed or could be found. In response, the HSE explained that, on reflection, it appeared that an overly literal interpretation of the request had been taken and that this had informed the searches that had been carried out. During the course of the review, it directed that further searches be undertaken, interpreting the request in a broader way, following which a number of relevant records were identified. It stated that the records would need to be examined to establish whether they were within the scope of the request and whether any exemptions under the FOI Act applied, before they could be released.

 

Given that the HSE has accepted that it took an unduly narrow interpretation of the request and that it appears that records relevant to the request do, in fact, exist, I have no option but to find that the HSE was not justified in refusing the request under section 15(1)(a). I consider the most appropriate course of action to take is to annul the decision, the effect of which is that the HSE 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 he is not satisfied with the HSE’s decision.

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse the applicant’s request, under section 15(1)(a) of the FOI Act. I direct the HSE to conduct a fresh decision-making process on 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.

 

 

Stephen Rafferty

Senior Investigator