Case number: OIC-138144-S0Z7S3
19 September 2023
By way of background, HSE employees remunerated at or above a certain salary scale are subject to certain requirements under the Ethics Act 1995, as amended (the Ethics Act). Relevant employees must provide written statements of their interests, and the interests of their spouse, civil partner, child or a child of their spouse, which could materially influence the employees in the performance of their functions. Someone who has no registrable interests can submit a “nil statement”. I understand that the same applies to staff working for CHI which, according to its website, was established to govern and operate paediatric services in Dublin as a single service across existing locations at Crumlin, Temple Street and Tallaght, in preparation for the transition to new facilities at the two Paediatric Outpatient and Urgent Care Centres at Connolly and Tallaght Hospitals and the new children’s hospital on a campus shared with St James’s Hospital.
On 26 August 2022, the applicant made a three-part request to CHI in respect of each year from 2015-2021, seeking information relating to consultants at Temple Street and Crumlin Children’s Hospitals, as follows:
1. The number of statements of interests submitted by consultants employed by CHI at each hospital.
2. The number of nil statements submitted by consultants employed by CHI at each hospital.
3. The number of consultants employed at each hospital who submitted neither a statement of interests nor a nil statement.
The applicant confirmed that he was not seeking copies of the actual statements or the registers used to record receipt/non-receipt of statements. He also stated that he was not seeking access to the personal information of any individuals. The applicant said that he solely sought “certain basic statistics” relating to a statutory obligation under the Ethics Act.
CHI did not issue a decision on the applicant’s request within the statutory timeframe. Accordingly, on 3 January 2023, the applicant sought an internal review of CHI’s deemed refusal of his request.
On 6 March 2023, as CHI again failed to issue a decision within the statutory timeframe, the applicant sought a review by this Office of the deemed refusal of his request. On 26 April 2023, on foot of correspondence from this Office, CHI issued a letter to the applicant wherein it refused his request under section 15(1)(a) of the FOI Act.
On 10 May 2023, the applicant applied to this Office for a review of CHI’s decision.
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 FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether CHI was justified in refusing access, under section 15(1)(a) of the FOI Act, to certain statistical information relating to statements of interests.
Before I address the substantive issues arising, I would like to make a couple of preliminary comments.
First, it seems to me that the manner in which CHI dealt with the applicant’s request was wholly unsatisfactory. It appears that CHI made no effort to process his request until it was contacted by this Office.
In addition, during the course of this review, CHI provided conflicting statements and submissions to this Office. For instance, it initially stated that it made a lengthy submission to this Office in relation to a previous application for review by the same applicant concerning similar matters. However, it subsequently transpired that there had been no such application or submission made to this Office. In addition, CHI stated that it had previously released redacted versions of statement of interests registers for 2019 and 2020 to the applicant, however it later clarified that only the 2020 register had been.
I note that in its submissions to this Office, CHI referred to difficulties arising due to staff changes and the records in question being held in different CHI offices. However, as noted in this Office’s previous decision in case Mr Y and Children’s Health Ireland (OIC-132665-J9G7M0), all records held by Crumlin Children’s Hospital and Temple Street Hospital were transferred to CHI on commencement of the relevant part of the Children’s Health Act 2018, i.e. on 1 January 2019. As such, I would expect CHI to have appropriate records management practices in place so that FOI requests for records relating to the period before (or since) relevant records were transferred could be processed efficiently.
Furthermore, as CHI should be aware, there is a significant amount of guidance and support material available to FOI bodies to assist them in meeting their statutory obligations under the FOI Act. This Office publishes comprehensive guidance notes and sample questions to assist FOI bodies in decision-making on our website: www.oic.ie. All of the decisions issued in respect of our reviews are also published on the website. The Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform also publishes guidance documents, training manuals, and a Code of Practice at https://foi.gov.ie/. I would also expect CHI to ensure that future FOI requests are processed efficiently and in line with the requirements of the FOI Act.
In its submissions to this Office, CHI referred to a previous decision of this Office, namely Mr N and Health Service Executive (OIC case OIC-124624-M7Z3K8), which concerned a request for records relating to statements of interests. That decision was appealed to the High Court by the HSE on 31 January 2023. CHI argued that this Office should await the outcome of the High Court appeal before proceeding to determine this review, which it believed to concern, wholly or partially, an issue that is awaiting clarification and determination by the High Court.
I note, however, that in OIC case 124624, the HSE refused a request under sections 41(1) and 35(1)(b) of the FOI Act, while this review is solely concerned with CHI’s refusal under section 15(1)(a). Furthermore, the applicant in this case is solely seeking access to statistical information relating to statements of interests and nil statements. The case which has been appealed to the High Court concerns a refusal to provide access to copies of registers recording the submission of statements of interest, including the names of submitters/non-submitters. The applicant in this case has expressly removed such information from the scope of this review. In the circumstances, I am satisfied that the cases can be sufficiently distinguished such that it is appropriate to continue with the current review.
Lastly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore, in this case, the onus is on CHI to satisfy me that its decision is justified.
Essentially, CHI’s position appears to be that the applicant’s request is not a valid request under the FOI Act, as he sought access to specific statistical information which it considers not to fall within the definition of “record” in section 2, and/or that no record exists containing the precise information sought and that the FOI Act does not require CHI to create a new record.
Whether the request is valid
Section 12(1) of the FOI Act provides that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. As such, if a requester wishes to obtain information from a public body, s/he should seek access to records that hold such information and should include sufficient details in the request to allow the public body to identify the records sought.
Furthermore, while the purpose of the FOI 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. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
In its submissions to this Office, CHI stated that a right of access under section 11 of the FOI Act only arises in relation to records. It contended that the applicant had not sought access to any record as defined in section 2, nor to any part or extract of any record. CHI also argued that “[s]tatistics are not records”. It referred to a decision from this Office - OIC Case 010072 Mr X and the Children’s University Hospital Temple Street (available on our website at www.oic.ie) which predates the FOI Act 2014 - in support of its position that it was not required to create a record to respond to the applicant’s request. In that case, the then Commissioner found that the FOI Act provides for a right of access only to records which already exist and stated that the Act did not require the creation of records in order to grant a request. I shall consider this in more detail below. CHI appeared to be of the view that as it was not required to create new records to address an FOI request and as the applicant had specifically stated that he was not seeking copies of statements of interests, nil statements, or of any registers used to record these statements, that he had essentially confirmed that his request was invalid under the FOI Act.
I have carefully considered the applicant’s request in this case and CHI’s arguments set out above. I am satisfied that the applicant’s comments regarding not seeking copies of various records could be reasonably interpreted to mean that he was not seeking access to details of the interests actually declared by identifiable consultants. While I accept that the applicant said he was looking for statistical information, it seems clear to me that he was essentially seeking information which is contained in records held by CHI.
In the circumstances, I am satisfied that CHI could reasonably have been expected to treat the request as a request for records that contain the information sought by the applicant and that the applicant’s request constitutes a valid request under the FOI Act. I am also satisfied that the applicant’s request contained enough particulars to allow CHI to identify the records concerned. Furthermore, if it was unclear to CHI how to proceed with the request, I would have expected it to contact the applicant in order to clarify matters.
Section 15(1)(a) – whether records exist and Section 17(4) – extraction of information held electronically
Notwithstanding CHI’s view that the applicant’s request was invalid, it also refused the request on the basis that he was not seeking access to records which currently existed, but that he sought the creation of a new record, which it contended it was not required to do.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
It is important to note that, with one exception, the FOI Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), 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. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. 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.
I outlined above that HSE employees remunerated at or above a certain salary scale are subject to certain requirements under the Ethics Act. During the course of the review, CHI confirmed that it holds some limited registers relating to those requirements. For instance, it said that it holds a spreadsheet for 2018 and registers of 2019 and 2020 returns, and that the latter was released to the applicant on foot of a previous request. However, its position was that, due to staff changes, records containing the information sought either did not exist, or where they existed, were incomplete.
The FOI Act provides for a right of access to records held by public bodies unless they are otherwise exempt from release. While I note CHI’s arguments that the records concerned are incomplete, there is nothing in the Act which allows an FOI body to refuse to grant access to a record based solely on the fact that the information in the record is incomplete, inaccurate or potentially misleading. As this Office has found on many occasions, the possibility of information being misunderstood could rarely, if ever, be a good cause for refusing access to the records. Such an argument suggests that the FOI body may be incapable of explaining its records to the public and may be unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
Moreover, while CHI provided this Office with some details of searches it undertook in an effort to locate records, it appears to have carried out those searches on the understanding that it was not obliged to create a new record. As noted above, in its submissions to this Office, CHI relied on OIC Case 010072 in support of its argument that it was not required to create a new record. That case concerned a request for access to certain statistical information relating to a particular unit of the hospital in question. The FOI body’s position in that case was that it did not collate statistics in the manner sought by the applicant. While it was not disputed in that case that the FOI body held records containing the information sought, it would have been necessary to manually collate and cross-reference data from different sources and create a new record in order to grant parts of the applicant’s request. However, while the Commissioner affirmed the FOI body’s refusal of the applicant’s request in that case, it is important to note that her decision was made under the Freedom of Information Acts 1997 and 2003, rather than the 2014 Act.
Prior to the introduction of the FOI Act 2014, a public body was entitled to refuse a request for information that was held in two or more electronic records on the ground that the extraction and compilation of the data would result in the creation of a new record. The introduction of section 17(4) in the FOI Act 2014 allowed for the extraction of such data and for the resultant record to be regarded as a record that existed when the request for such data was made. The essential purpose of section 17(4) is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records, based solely on an argument that the extracted output would comprise a new record and that the FOI Act does not require the creation of a new record.
It is not clear to me from CHI’s submissions, or from its reliance on the 2005 decision in OIC case 010072, that CHI considered section 17(4) of the FOI Act in respect of the limited registers it holds. Nor is it clear to me from CHI’s submissions that reasonable searches were carried out in this case, despite repeated requests from this Office to clarify the matters at issue. Furthermore, it is clear that CHI holds at least some records which expressly capture the information sought in this case. In the circumstances, I am simply not in a position to find that CHI took reasonable steps to locate the records sought.
Accordingly, I find that CHI was not justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act. I consider that the most appropriate course of action to take is to annul CHI’s decision in its entirety, the effect of which is that CHI must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. In processing the request afresh, I would expect CHI to have regard to comments above in relation to its obligations under section 17(4). The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the CHI’s decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul CHI’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act. I direct CHI to conduct a fresh decision-making process in relation to the request.
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.