Case number: OIC-127853-J8T0C3, OIC-127844-H4G6Q5
19 December 2022
This decision is a composite decision in respect of two requests the applicant company made to the HSE through its legal representatives. The requests were for details of the cumulative number of recorded and reported Covid-19 cases within a one mile radius of a number of specified Eircodes (19 in total) on six specified dates during the period March 2020 to June 2020. For convenience, I will refer in this decision to communications with the applicant’s legal representatives as communications with the applicant.
In its decisions dated 27 June 2022 and 1 July 2022, the HSE refused both requests under section 15(1)(a) of the FOI Act on the grounds that the records sought do not exist.
The applicant sought an internal review of both decisions, wherein it argued that the HSE and the Health Protection Surveillance Centre (HPSC) maintain detailed records of the number of Covid-19 cases in Ireland, including the dates on which those cases were confirmed and the location of the cases. It said that in some of the Covid-19 daily operation updates, there are detailed maps on which the locations of individual cases are highlighted. It said one of the data points provided is the Eircode associated with the individual. It also noted that Ireland’s Covid-19 Data Hub contains detailed interactive maps showing breakdowns of case numbers by county and by local electoral area and that it is possible to search an Eircode to find out what local electoral area the Eircode is located within. Moreover, it said the HSE had previously provided details of cases within particular defined geographic areas in 2020 in response to a previous FOI request.
By letters dated 26 July 2022 and 16 August 2022, the HSE affirmed its refusal of the requests under section 15(1)(a). It said it had regard to the requirements of section 17(4) of the Act and was satisfied that all efforts were made to locate any relevant records. On 5 September 2022 the applicant applied to this Office for a review of the HSE’s decisions.
During the course of the review, the Investigating Officer provided the applicant with details of the HSE’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that they do not exist. In response, the applicant made further submissions wherein it reduced the scope of the request to a single specified date.
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 between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in its decision to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for details of the cumulative number of recorded and reported Covid-19 cases within a one mile radius of 19 specified Eircodes on a specified date.
It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
It is also important to note that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Section 17(4) provides that where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates and where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. Section 17(4) defines reasonable steps as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body.
If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, it is entitled to refuse the request under section 15(1)(a) on the ground that the record sought does not exist. The question I must consider in this case, therefore, is whether the HSE was justified in finding that it does not hold records containing the specific information sought and that it cannot search for and extract the electronically held records by taking reasonable steps.
It is not disputed that the HSE holds data on Covid-19 cases and that it can provide certain information along certain geographical breakdowns. Its position, however, is that it does not hold records that contain the specific data sought and that it cannot extract the relevant records by using any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by it.
In its submissions to this Office, the HSE explained they while it holds data on the number of COVID-19 cases within certain geographic areas, it is not possible to produce from the current system a record that contains the number of COVID-19 cases within a 1 mile radius of a given Eircode. It the specific system it uses is a bespoke system that was specifically designed for it. It said that this is not a standard piece of software and as such, is not set up the same way as other more standard mapping software. It said that in practical terms, this means that adjusting the geographic areas for the purpose of creating records or reports is not possible in its current form. It said that the system is designed with “standard state geographies” in mind, which in this case refers to electoral districts and county lines. As such, it said that it is not possible to search within these boundaries for more specific results. It said that implementing such capabilities would require purchasing additional features as well as dedicating a significant amount of resources to deploy.
The applicant argued that as the public facing Data Hub was capable of being searched by Eircode, it considered it reasonable to search the same database using a pop-up search box or similar to enter details of a date range and geographic area (in this case a one-mile radius) which the applicant referred to as ‘running a query’ and it argued that such a search should fall within reasonable steps as outlined in section 17(4) of the Act.
The applicant also presented an example from a request from 2020 where the HSE provided Covid-19 case data based on Dublin postal codes. The applicant suggested that the current stance of the HSE was contradictory to this earlier response as this request for records was not only fulfilled, but within 4 days suggesting that other seemingly similar extractions should be straightforward.
The HSE explained that the previously released data was available due to it conforming to standard state geographies, in this case Dublin postal districts as opposed to more bespoke search terms as in the request under review.
As I have explained above, the question I must consider is not whether the HSE holds the information sought but (i) whether it holds a record or records containing the information sought or (ii) whether it can extract the information sought by using any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by it. Having regard to the HSE’s submissions, I am satisfied that the answer is no in both cases.
I accept the HSE’s submission that to implement a capability whereby its electronic system can produce the specific information sought would require purchasing additional features as well as dedicating a significant amount of resources to deploy. I am satisfied that such steps are not reasonable steps for the purposes of section 17 which, as I have explained, comprise steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body.
In the circumstances, I find that HSE was justified in finding that the records comprising the information sought by the applicant do not currently exist. I find, therefore, that the HSE was justified in refusing the request under section 15(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision in this case. I find that the HSE was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for details of the cumulative number of recorded and reported Covid-19 cases within a one mile radius of 19 specified Eircodes on a specified date.
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.