Case number: OIC-53315-X0W2D0 (190089)
4 July 2019
On 2 September 2018, the applicant made an FOI request to Cheshire Ireland for the following information:
A. Number of staff who received redundancy or severance payments from 2000 to date.
B. Number of staff who received statutory redundancy only from 2000 to date.
C. Number of staff who received severance payment only from 2000 to date.
D. Number of staff who received redundancy and a severance payment from 2000 to date.
E. Number of staff who received a gratuity of over €5,000 from 2000 to date.
F. Please indicate what formula was used for each person who received a payment over and above statutory redundancy from 2000 to date.
G. Please indicate the number of staff who received a payment when combined exceeded €50,000, €75,000, €100,000 and €150,000, this includes staff who were made redundant/received a severance/early retirement from 2000 to date.
H. Please indicate for all of the above staff those who received 8 weeks’ notice in lieu or longer with payment.
Cheshire Ireland's decision of 2 October 2018 gave the applicant the number of staff who received redundancy payments from 2000 to date (part of A), the numbers requested at B and E and the information requested at F and H. It refused access to the rest of the requested information under sections 35 (confidential information) and 37 (personal information) of the FOI Act.
On 7 October 2018, the applicant sought an internal review, saying that he had sought numbers rather than personal information. Cheshire Ireland's internal review decision of 29 November 2018 said that records containing the rest of the requested information did not exist (section 15(1)(a)). It also said that the requested information was exempt under a number of FOI Act provisions, including sections 35 and 37.
On 19 February 2019, the applicant sought a review by this Office of Cheshire Ireland's refusal to fully grant his request.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, Cheshire Ireland and the applicant. I have had regard also to the provisions of the FOI Act.
This review is concerned with whether Cheshire Ireland is justified in refusing to fully grant the applicant's request for the rest of the information sought at part A and the information sought at parts C, D and G. As I explain further below, his request must be taken as seeking access to records containing the aggregated information sought.
This Office has no role in determining whether any information that Cheshire Ireland gave to the applicant is correct.
Before I make my findings in this case, it is useful to summarise this Office's position on certain relevant matters arising from the fact that the applicant requested information rather than records.
Requests for Records vs. Requests for Information
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 records containing the information sought.
Requirements in the FOI Act to Create Records (Section 17 of the FOI Act)
There is no requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record. The creation of new records is not required under the Act apart from the specific requirements of section 17(4) to extract records or existing information held on electronic devices.
Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those 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. 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.
However, 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, then that is the end of the matter.
Granting Access to Records With Exempt Information Redacted (Section 18)
Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do
so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
As this Office has outlined to the applicant, Cheshire Ireland says it does not hold records containing the information sought. It says that the HR department manually compiled the information granted to the applicant with its decision. It says that it did so to facilitate the requester and also because it did not think it would be possible to identify individuals from the details concerned.
In relation to the parts of the request that Cheshire Ireland is refusing, it says that it has reviewed various human resource (HR) files and financial records and holds no discrete records containing the information concerned.
Cheshire Ireland is funded by the HSE. It says that it gives the HSE aggregated information on payment types by way of audited financial statements. Cheshire Ireland provided this Office with a copy of an excerpt of a financial statement for a particular year. The excerpt states the total amount for a particular type of payment for the year concerned and for the previous year. However, I am satisfied that it does not state the total number of staff who received such a type of payment. Cheshire Ireland says that it gives its auditors details of individual severance or redundancy payments, and the method of calculation for each amount paid. It also says that the auditors have access to all of the organisation's books and records.
Furthermore, Cheshire Ireland says that it cannot extract the requested information from its databases. It says that it replaced its accounts package in 2012 and no longer has access to the previous package. It says that it can only access pre-2012 information from audited financial statements, which for reasons set out above do not contain the requested information. It also says that these statements are held in hard copy or PDF format and are not searchable.
Cheshire Ireland says that its current accounting package enables it to extract certain figures for 2012 to date but that such information does not contain the level of detail sought in the FOI request. It provided this Office with certain details in this regard. I note that those details do not give individual amounts paid, which is relevant to part G of the request, or give totals of persons who received severance pay or both redundancy and severance pay. The details are, accordingly, not covered by the request.
Cheshire Ireland says that, accordingly, to provide the requested figures would require a manual process of identifying particular transactions from its ledgers, adding relevant information to produce relevant figures, and referring as necessary to other information in other files such as individual HR files and correspondence with its auditors.
I have no reason to dispute the above. I accept that no discrete records containing the requested information exist and that section 17(4) does not apply in this case. While the applicant says that there is no need to create a record, in that each of the relevant staff will have a record around their severance, etc., I am satisfied that Cheshire Ireland is not required to manually extract the requested information from such individual hard copy records. I find that section 15(1)(a) applies on the basis that records containing the requested information do not exist.
In the circumstances, there is no need for me to consider the other exemptions relied on by Cheshire Ireland in this case. However, from my examination of the details provided for 2012 to date, I formed the view that if they were covered by the request, they would most likely qualify for exemption under section 37(1) in the circumstances. I also note the applicant's view that, because he has been granted access to information concerning numbers of staff who received redundancy payments (an element of part A), there is no basis for refusing him access to records concerning part D. Part A is concerned with numbers who received redundancy or severance while part D is concerned with the different matter of numbers who received both types of payment. It is also Cheshire Ireland's position that comparing the details would effectively disclose personal information regarding staff in receipt of severance payments.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Cheshire Ireland’s refusal to grant the applicant's request 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.