Case number: 140134

Whether the HSE was justified in its decision to refuse access to records comprising emails between the HSE and An Bord Altranais under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 28 August 2013, the applicant submitted a Freedom of Information request to the HSE for access to records comprising any emails between it and An Bord Altranais between January 2010 and July 2013. Following a request for clarification by the HSE dated 30 August 2013, the applicant submitted a revised request limiting the scope of his request to emails between the HSE and An Bord Altranais between January 2010 and July 2013 relating to certain, specified matters.

On 27 January 2014, the HSE released records to the applicant, while purporting to withhold other records, in whole or in part, under sections 10(1)(a), 21, 22 and 28 of the FOI Act. The applicant sought an internal review of the HSE's decision by way of letter dated 3 February 2014. The HSE's reviewer upheld the original decision. On 28 May 2014, the applicant sought a review by this Office of the HSE's decision.

In the course of this review, it became apparent that none of the records furnished to the applicant in fact fell within scope of his request. The request related solely to emails between the HSE and An Bord Altranais, but none of the records identified by the HSE fit this description. The applicant accepted this to be the case.

In his email to the applicant dated 8 September 2014, Mr Niall Mulligan of this Office provided the applicant with details of the searches carried out by the HSE. Follow-up queries concerning the searches were put to the HSE after further submissions from the applicant.

I note that, in a telephone call of 9 January 2014, Mr Mulligan informed the applicant of his view that based on the further submissions he had received from the HSE, its decision was justified. The applicant indicated that he firmly believes that records exist falling within the scope of his request. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the applicant's and the HSE's submissions to this Office. I have also had regard to the to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

As previously outlined, it emerged in the course of this review that none of the records initially identified by the HSE in relation to the applicant's request were in fact within scope. Therefore, this review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records sought under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this 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/her decision. The evidence in "search" cases consists of the steps actually taken to search for 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 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 and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In the course of this review, the HSE submitted that no relevant records could be found and set out details of the searches that had been carried out. The HSE stated that its search and retrieval process was carried out with a specific focus on six individuals, who were identified in the applicant's request.

The HSE submitted that 10 further individuals were also included in the search and retrieval process, given their involvement in the matters in question. The HSE claims that electronic searches were carried out in relation to specified relevant "keywords", as well as variations and misspellings of same.

These details were provided to the applicant, who submitted that he is strongly of the view that emails between the HSE and An Bord Altranais exist. In particular, the applicant claimed that he has reason to believe that emails exist between named officers of the HSE and An Bord Altranais, from dates between 8 and 28 February 2010.

Mr Mulligan put the applicant's concerns to the HSE and queried whether there is a possibility that any emails may have been deleted and could be recovered. In response, the HSE submitted that the Regional Director's Office did not archive or delete emails and that searches included the inboxes and sent items folders for the relevant email accounts. The HSE also submitted that it would not be the usual practice for the HSE to contact An Bord Alatranais in relation to matters such as those to which the applicant's request related.

While I acknowledge the applicant's clearly stated view that emails exist, the role of this Office is confined to determining whether the HSE has taken all reasonable steps to locate the records. The applicant has been unable to provide evidence to support his contention, and I have no basis upon which to doubt the HSE's submissions. Having carefully considered the matter, I am satisfied that the HSE has taken reasonable steps to locate the records sought and accordingly find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of HSE in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator