Whether the HSE was justified in refusing, under section 15(1)(d) of the Act, access to records relating to the calculation of pension entitlements on the basis that the information is already in the public domain, and under section 15(1)(a) of the FOI Act, on the ground that no further records exist or can be found

20 December 2023

Background

In a request dated 17 April 2023, the applicant sought access to records relating to the calculation of pension entitlements for HSE consultants, to include:

• All personal and corporate records related directly or indirectly to the inclusion or otherwise of premium payments for structured on site attendance at weekends and public holidays in the calculation of pension entitlements.
• Copies of all communication and records exchanged between all government departments, HSE departments, including but not limited to the Pension Offices in Cork and Manorhamilton, HSE Corporate Employee Relations, all HSE funded agencies and all other relevant individuals and/or agencies which come under the terms of the FOI Act relating to pension entitlements, and more specifically those relevant to the interpretation and application of consultant pension entitlements based on the 2008 Consultant Contract.
• all memos, directives, guidance documents and similar that issued at any time to HSE personnel and HSE funded agencies regarding the interpretation, application and calculation of medical consultants' pensions.

On 22 May 2023, the applicant sought an internal review by the HSE on the basis that it failed to issue a decision on his request within the four weeks required under the Act. On 6 June 2023, the HSE sent the applicant an email informing him that the information he requested is already in the public domain and does not need to be addressed through FOI. The HSE included a link to statutory instrument 362/2010, entitled Health Service Executive Employee Superannuation Scheme, 2010. On 5 July 2023, the applicant applied to this Office for a review on the basis that the HSE did not respond adequately to his FOI request. On 27 July 2023, at the request of this Office, the HSE issued a letter to the applicant outlining its effective position. It refused access to the records sought under section 15(1)(d) of the FOI Act. It stated that records related to calculations of all pensions including the 2008 Consultant Contract can be found in the public domain and it provided the applicant with a link to its webpage containing information about terms and conditions of employment, including details about the Consultants Contract.

On 27 July 2023, the applicant applied to this Office for a review of the HSE's decision on the basis that the HSE had not addressed the substantive elements of his request, specifically relating to communications shared between relevant individuals and departments within the HSE and beyond.

During the course of this review the Investigating Officer provided the applicant with details of the HSE's submissions wherein it outlined the searches undertaken to locate the records and its reasons for concluding that, beside the records in the public domain, no further records related to his request existed or could be found. The Investigating Officer invited the applicant to make submissions on the matter. On 20 October 2023, the applicant provided this Office with submissions in support of his contention that further records should exist. He included details of various communications he had with the HSE about pension entitlements as an example that further records exist. The Investigating Officer subsequently sought and received further submissions from the HSE on the matter.

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 correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE's position is that the requested records are in the public domain and it directed the applicant to where that information can be found. However, the applicant considers that further relevant records should exist. This is, in essence, a refusal to grant access to records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request on the basis that the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with whether the HSE was justified, under sections 15(1)(a) and 15(1)(d) of the Act, in refusing access to records relating to pension entitlements coming within the scope of the applicant's request.

Analysis and Findings

Section 15(1)(d)

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request if the information requested is already in the public domain. The applicant sought access to all documents, correspondence and communications related to inclusion of premium payments (overtime) in pension calculations for consultants. The HSE refused access to the information under section 15(1)(d) of the FOI Act and directed the applicant to paragraph 9 of statutory instrument S.I. No.362/2010.

In his submissions to this Office, the applicant stated that the statutory instrument available in the public domain does not contain the information sought. The applicant stated that section 9 "sets out the broad rules governing pension entitlements in a variety of circumstances but makes no reference, direct or indirect, to the matter in dispute which relates to the inclusion or otherwise of premium payments in respect of structured on site attendance at weekends and public holidays as defined in the Consultant Contract 2008."

In its letter setting out its effective position, the HSE also provided the applicant with a link to the 2008 Consultant Contract and other documentation that is publicly available which it deemed relevant to the applicant's request. No dispute has been raised about access to those records which are in the public domain. Rather, the question in this case is whether the HSE holds further relevant records other than those it identified as being in the public domain.

Section 15(1)(a)

Section 15(1)(a) of the FOI 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. Our 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 their decision and 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.

As noted above, the HSE provided this Office with details of the searches it said it undertook in an effort to locate further relevant records and its reasons for concluding that no further records exist or can be found. The Investigating Officer provided the applicant with details of the HSE's submissions in this regard. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In response, applicant provided his own submissions outlining the basis for his belief that further records exist. In light of the applicant's submissions, the Investigating Officer requested further details from the HSE about the searches it had undertaken.

In its initial submissions to this Office, the HSE stated that searches were carried out electronically within its National Employee Relations Office in Dublin as well as the HSE Superannuation Departments in Cork and Manorhamilton. The HSE stated that it used the applicant's name, personnel number, PPS number and the term "consultant" as keywords when carrying out those searches. The HSE said that, aside from the statutory instruments and the 2008 Consultant Contract that are in the public domain, there have been numerous circulars, letters, departmental directives, memo's issued over the years that have impacted on how pension schemes are administered in general across the public sector and some relating specifically to Health. The HSE provided this Office with a list of 778 circulars each of which it said will have had some impact on how, the Health Boards initially, and then the HSE, administer the pension scheme. It said it is happy to provide the applicant with a copy of these circulars if the applicant wishes to review them. The HSE also stated that even this list of 778 circulars would not be a definitive list of all such circulars, nor does it include the many memos, letters and directives that would have issued over the last 50 years that could still impact on how the pension scheme is administered currently. In its submissions to this office, the HSE also referred to three Consultant Contract 2008 Management Guideline documents, which it believes were previously sent to the applicant.

In response to the HSE's submissions, the applicant said he received correspondence from various HSE offices in respect of pension calculations/entitlements. The applicant provided this Office with a list of 20 examples of correspondence he had since January 2022 with various HSE offices in relation to pension calculations and entitlements. He provided a description of each communication, as well as dates and in occasions the name of the sender. The applicant explained that he reproduced summaries of correspondence "solely and exclusively for the purpose of demonstrating that a considerable volume of communication took place between the HSE Pensions Office South (Cork)" and different named HSE agencies and departments, including the National Pensions Office, the National Pensions Management Unit and National Corporate Employee Relations Services. The applicant also indicated that he wrote to the National Director of Human Resources on 28 November 2022 seeking her assistance in resolving the matter.

In response to further queries by the Investigating Officer about the communications referred to by the applicant, the HSE's Liaison Officer said that she contacted the various departments involved and only received a response back from the HSE South Pensions Office. The Pensions Office said that they were not contacted in relation to the applicant's FOI request. It said that all the correspondence referred to by the applicant relate to documents between the HSE and he applicant, which it said he would have copies of already.

In further communications with the Investigating Officer, the HSE said its National Pensions Management Office reiterated there are a huge number of circulars released over the years, all of which will have some impact on the operation of the pension scheme. It said that the HSE Superannuation Scheme "makes no mention or reference to the inclusion of overtime as under the general pension scheme rules, overtime is not superannuable". It added that this was explained to the applicant in previous correspondence dated 28 February 2023.

During the course of this review the HSE provided the applicant with a list of the circulars referred to above and asked him to identify any that he wishes to receive. In reply to the HSE, the applicant said most of the circulars have no relevance whatsoever to the substantive issue identified in his original request. The applicant suggested "In order to expedite matters and to reduce the administrative burden on all concerned, I respectfully ask that you kindly make available as requested all communications shared between any officer or agent of the local Pension office in Cork, the National Pension Management unit in Manorhamilton, Employee Relations office in Dublin, Cork University Hospital / HSE South and Marymount University Hospital and Hospice relating to the interpretation and application of consultant pension entitlements, based on the 2008 consultant contract, with particular focus on the inclusion or otherwise of structured on site attendance premium payments in the calculation of pension entitlements."

In considering section 15(1)(a), this Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Nonetheless, section 15(1)(a) requires the FOI body to take all reasonable steps to locate relevant records.

In summary, it seems to me that the HSE's position is that the applicant holds copies of the correspondence he referred to in his submissions to this Office and that any further relevant records are generally in the form of legislation and circulars that are in the public domain. However, it is unclear to me whether other records may exist resulting from the correspondence referred to by the applicant. For example, has there been any internal or external communications dealing with the issue of premium payments in the calculation of pension entitlements, either directly related to the applicant's enquiries or otherwise? In any event, in the absence of any indication from the applicant that he did not wish to receive a copy of any previous communications he had on the subject, I would expect the HSE to have identified all relevant records coming with the scope of his request and to have made a decision on access to those records. It was open to the HSE to contact the applicant to clarify if he was seeking access to records of his communications with various offices within the HSE, or to clarify his request in general. Furthermore, I note that the HSE South Pensions Office said it was not contacted in relation to the applicant's FOI request. It appears to me that other offices contacted by the Liaison Officer on foot of queries from this Office did not respond either adequately, or at all, and have not, in my view, demonstrated that all reasonable searches were undertaken. Furthermore, while certain offices in the HSE carried out electronic searches using the applicant's name, etc., I note the applicant did not limit his request to records relating to himself. 

In the circumstances, I am not satisfied that the HSE has demonstrated that it has undertaken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant's FOI request.  Accordingly, I find that the HSE was not justified in refusing the applicant's request under section 15(1)(a) of the Act.

I am satisfied that the most appropriate course of action to take is to annul the decision of the HSE in its entirety, 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 he is unhappy with the HSE's new decision.

Given the large volume of circulars and other documentation about pension entitlements, I recommend to the HSE that it engage further with the applicant at the outset of this new decision-making process in an effort to clarify what particular records he is seeking.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision to refuse access to records under sections 15(1)(a) and 15(1)(d) of the Act. I direct the HSE to conduct a fresh decision-making process.  

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.

Richard Crowley
Investigator