Case number: OIC-56136-H8Z1Q7
6 February 2020
On 9 May 2019, the applicant made an FOI request to the Hospital for copies of all inspection reports and other documentation including invoices received from pest-control service providers in respect of work carried out at the Hospital during 2016, 2017 and 2018, as well as a record of the total amount of money spent on pest-control services during those years. The Hospital issued a decision on 17 June 2019. It granted access to a record of the total amount of money spent on pest control services and a summary of pest-control call-outs. It refused access to the pest control reports on the ground that they were exempt under section 29 of the FOI Act and to the invoices on the ground that they were exempt under 36(1)(b) of the FOI Act. On 1 August 2019, the applicant applied for an internal review decision. On 19 August 2019, the Hospital issued an internal review decision, in which it affirmed its original decision. On 29 August 2019, the applicant applied to this Office for a review of the Hospital's decision.
In conducting my review, I have had regard to the correspondence between the Hospital and the applicant as described above, as well to correspondence between this Office and the Hospital. I have also had regard to the provisions of the FOI Act.
During the review process, the applicant confirmed to this Office that he does not seek access to the information in the invoices. That information therefore falls outside the scope of this review. Furthermore, the Hospital said that the pest control reports for 2016, 2017 and 2018 were not in fact available. Accordingly, this review is concerned with whether the Hospital was justified in refusing access to the pest control reports concerned under section 15(1)(a).
First, I note that my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Secondly, I must draw attention to what I consider to be poor practice by the Hospital. In both its original and internal review decisions, the Hospital claimed that the pest control reports were exempt under section 29 of the FOI Act, which allows for records concerning the deliberative process of a public body to be withheld in certain circumstances. Both decision letters referred to the fact that the decision-maker had reviewed the records. However, during the review process, the Hospital said that this was an error. It apologised, saying that it does not hold the records and that access should have been refused under section 15(1)(a). Clearly, if the reports were not available in the first place, then the decision-makers could not have examined them before proceeding to give reasons for refusing access to them under section 29. This is a completely unsatisfactory handling of an FOI request. I would expect the Hospital to take steps to ensure that similar errors do not occur. The applicant was entitled to be given accurate information and reasons for the refusal of his request as required by the FOI Act. According to the Hospital, its decision-makers felt that if the records were available, “section 29 would have to be used”. I do not accept that there is any merit in such an approach.
I urge all FOI bodies to make use of the many FOI resources available, on our website at www.oic.ie and the website of the Central Policy Unit of the Department of Public Expenditure and Reform at www.foi.gov.ie. I also draw the attention of FOI bodies to our recently published report “The Freedom of Information Act – Compliance by FOI Bodies”, which is available on our website at www.oic.ie. This contains recommendations for good practice by FOI bodies.
I will now consider section 15(1)(a).
Section 15(1)(a) - Refusal on administrative grounds
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.
During the review process, the Investigator asked the Hospital about the steps it had taken to search for the reports and its record-management practices. The Hospital says that its previous pest-control service-provider had held the reports on an electronic database and they were available for viewing by the Hospital. It says that its service-provider has now changed and that database is no longer available as the company concerned has since been dissolved. It says that it contacted the current service-provider, who confirmed that it does not have any data and does not have access to the old server. Furthermore, the Hospital says that its Technical Services Manager searched his own department and emails and was unable to locate the reports. The Hospital says that no paper report existed and the information was held electronically by the previous service-provider. It says that it did not hold digital copies of the reports and was supposed to have access to the previous service-provider’s database.
The Investigator made the applicant aware of the Hospital’s revised position on section 15(1)(a) and understandably in the circumstances, the applicant queries it. He says that the Hospital previously acknowledged that the pest-control company provided it with inspection reports, which appears to conflict with its current contention that it does not hold them. I have sympathy with the applicant’s difficulty in accepting the Hospital’s current position. Nonetheless, having regard to the Hospital’s submissions, I am satisfied that this appears to be a case of poor record-keeping and confusion within the Hospital. Its pest-control policy refers to hard copies of the reports being maintained. However, it advised this Office that the practice was for the reports to be logged onto the database maintained by the pest-control company and for the Hospital to access them electronically. According to the Hospital, it was possible to provide the applicant with summary reports because the Hospital helpdesk kept a record when a call came in about the need for a call-out.
The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. In the circumstances, I am satisfied that the Hospital has taken reasonable steps to search for the pest control reports. I find that although its flawed approach to the FOI decision caused confusion for the applicant and for this Office, the Hospital was justified in refusing access to further records under section 15(1)(a) of the FOI Act on the basis that the requested records are not held or cannot be found.
Having carried out a review under section 22(2) of the FOI Act, I affirm the Hospital’s decision, under section 15(1)(a) of the FOI Act.
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.