Mr X and Health Service Executive [2024] IEIC 143597 (18 September 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

Whether the HSE was justified in refusing access to the records sought under section 15(1)(i) of the FOI Act on the basis that they have been released to the applicant previously

18 September 2024

Background

In a request dated 3 January 2023, the applicant sought access to the following:

● Documents which were excluded on the schedule associated with the applicant's previous FOI request numbered FOI-30522 on the grounds that they fell outside the timeframe of that request; and

● the applicant's medical file from 1 April 2023 to the date of his request, including any emails not forming part of his medical file.

The applicant had previously submitted a request under the FOI Act, which was subsequently numbered FOI-30522, seeking access to records relating to him as held by North Lee Mental Health Service from March 2021 until 19 October 2022; the date of his request.

The HSE but did not issue an original decision on the applicant's current request within the specified time period. Therefore, on 15 August 2023, the applicant sought an internal review of this deemed refusal. The internal review decision issued on 27 October 2023. A total of 118 pages of records were identified as falling with the second part of the applicant's request and partial access was granted to these records, with certain information refused on the basis of section 37(1) relating to personal information. With regard to the first part of the applicant's request, the internal reviewer indicated that all records falling within this part of the request had previously been released to the applicant through various FOI requests.

On 6 November 2023 the applicant appealed the matter to this Office.

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 applicant's comments in his application for review and to the submissions made by the HSE in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In the course of correspondence with this Office the applicant indicated that his appeal relates solely to the first part of his request. I therefore do not consider it necessary to examine any further the redactions made to the records identified for the second part of his request on the basis of section 37.

With regard to the first part of the applicant's request, the HSE indicated that pages 76-122, 137, 685-812 and 966-1273 were refused to the applicant as part of FOI-30522 as they were considered outside the time period set out by the applicant in that request. In the course of its submissions to this Office, the HSE also referred to a small number of pages of records (pages 1028, 1032, 1038, 1052, 1146, 1154, 1169 and 1183) identified as part of FOI-30522 which had been refused to the applicant in that request as they contained the personal information of a third party. The HSE further indicated that it subsequently received consent from the third party in question to release these pages of records to the applicant as part of a separate FOI request from the applicant (FOI-25504). It said it therefore released these pages of records to the applicant on 5 August 2021.

I have considered whether these records should form part of the current review but, having done so, I am satisfied that the wording of the applicant's current request clearly indicates that he is seeking access to records which were considered to fall outside the timeframe of his request in FOI-30522. It does not appear to me that records which were refused in the request numbered FOI-30522 on the basis that they contained the personal information of other individuals would fall within the scope of the applicant's request. I am therefore satisfied that I do not need to consider them further as part of my review. In any event, even if I am mistaken in this understanding, it would appear that these pages of records have already been released to the applicant as part of FOI-25504.

This review is therefore solely concerned with whether the HSE was justified in refusing access to pages 76-122, 137, 685-812 and 966-1273 as identified in the applicant's separate request numbered FOI-30522, on the basis that such records have been released to him on foot of further separate requests by the applicant under the FOI Act and the provisions of section 15(1)(i) apply.

Analysis and Findings

Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. For the section to apply, the public body should be able to show that (i) the records sought were already released and (ii) they are available to the requester.

Generally, if a body wishes to refuse a request under section 15(1)(i) I would expect it to be able to show that the records sought were previously released to the requester and to explain why it considers that they are available to the requester concerned.

It is the HSE's contention that pages 76-122, 137, 685-812 and 966-1273 were refused to the applicant as part of FOI-30522 as they were considered outside the scope of that request. The applicant has sought access to these pages in the current request. However, the HSE said that it has already released these records to the applicant on foot of separate FOI requests numbered 25085, 25504 and 26685.

In the course of my review I sought further details from the HSE with regard to these separate requests. In response, it proved me with the schedules for requests numbered 25085, 25504 and 26685. I have examined these schedules and compared these with the schedule for request referenced FOI-30522. In addition, the HSE have provided greater detail to this Office in relation to each record and in particular has provided further descriptions for each page referred to above.

With regard to pages 76-122, in its submissions to this Office, the HSE said that it had incorrectly indicated that these records had previously been released to the applicant. It said that following further review, it now understands that these pages had not been released under FOI-25085. In addition, the HSE said that given the multiplicity of requests from the applicant it was unable to definitively say whether these pages of records have been released to the applicant as part of another request. It said that it would create a considerable administrative burden to review all of the applicant's many previous requests to determine the matter and it has therefore suggested that it is prepared to now release these records to the applicant.

With regard to page 137, while the HSE originally indicated that it had been released to the applicant on 20 May 2020 as part of FOI-25085, in its submissions to this Office it indicated that the date of release was incorrect. It said the records had actually been released to the applicant on 13 May 2021. The HSE also provided a detailed schedule for FOI-25085 which indicated that what was referred to as page 137 in FOI-30522 corresponds with pages 1243-1244 in FOI-25085. Having examined the relevant schedules, I am satisfied that what was referred to as page 137 in FOI-30522 was released to the applicant in FOI-25085.

With regard to pages 685-812, the HSE provided this Office with a comparative schedule, comparing pages 685-782 of FOI-30522 with records released under FOI-25504 on 29 September 2020. Having examined these schedules, I am satisfied that, with regard to pages 685-782, these pages of records were released to the applicant as pages 757-842 of FOI-25504.

However, with regard to pages 783-812, the HSE in its most recent submissions revised its position and indicated that such records do not appear to have been previously released to the applicant under FOI requests numbered 25085, 25504 and 26685. The HSE further said that it is prepared to review these records for release to the applicant, having first determined whether they were released previously to him and if so whether they were fully or partially released.

The HSE also clarified its position with regard to pages 966-1273. It indicated that these records were released to the applicant as follows:

● Pages 966-1022 - released to the applicant as pages 1142-1175 and 1185-1195 of FOI-26685 on 13 May 2021;

● Pages 1023-1059 - released to the applicant as pages 751-756 and 1011-1039 of FOI-25504 on 29 September 2020;

● Pages 1060-1119 - released to the applicant as pages 685-743 of FOI-25085 on 20 March 2020;

● Pages 1120-1126 - released to the applicant as pages 744-750 of FOI-25504 on 29 September 2020;

● Pages 1127-1196 - released to the applicant as pages 1040-1108 of FOI-25504 on 29 September 2020; and

● Pages 1197-1273 - released to the applicant as pages 1197-1273 of FOI-26685 on 13 May 2021;

The HSE also provided this Office with a comparative schedule, comparing pages 966-1273 of FOI-30522 with records released under FOI requests numbered 25085, 25504 and 26685. Having examined these schedules, I am satisfied that pages 966-1273 of FOI-30522 were released to the applicant as a result of his multiple separate FOI requests as set out above.

The question before me is whether the HSE was justified in refusing access to records falling within the first part of the request under section 15(1)(i) on the ground that it has already released the records to him. Having examined the totality of the information provided, I am satisfied that with regard to pages 137, 685-782 and 966-1273, the HSE has provided adequate evidence in support of its decision to refuse access to these pages of records on the basis that they had previously been released to the applicant. The applicant has not argued that the records released to him on foot of the earlier requests are not available to him. As such, in the absence of any evidence or argument to the contrary, I find that the HSE was, indeed, justified in refusing access to those pages of records released on foot of the earlier requests under section 15(1)(i).

However, with regard to pages 76-122 of FOI-30522, as the set out above, the HSE said that due to the volume of similar requests from the applicant that it is unable to confirm whether these pages of records have separately been released to the applicant. In the circumstances, and in keeping with the HSE's express willingness to do so, I direct that the HSE undertake a fresh decision-making process with respect to these pages of records.

In addition, with regard to pages 783-812 of the records identified as part of FOI-30522, as set out above, the HSE's revised position is that these pages of records were not released to the applicant under FOI requests numbered 25085, 25504 and 26685. I therefore that it was not justified in refusing access to these records on the basis of section 15(1)(i) and I also direct the HSE to undertake a fresh decision-making process with respect to these pages of records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I affirm its decision to refuse access to pages 137, 685-782 and 966-1273 of the records identified as part of FOI-30522 on the basis that these records have separately been released to the applicant and section 15(1)(i) applies. However, I direct the HSE to undertake a fresh decision-making process with respect to pages 76-122 and 783-812 on the basis that it has not adequately demonstrated that section 15(1)(i) applies to these pages of records.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Mary Connery

Investigator

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and Health Service Executive [2024] IEIC 143597 (18 September 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/143597.html Cite as: [2024] IEIC 143597

Irish Information Commissioner's Decisions

Mr X and Health Service Executive

Background

Scope of Review

Analysis and Findings

Decision

Right of Appeal