Case number: OIC-132665-J9G7M0
4 April 2023
On 25 July 2022, the applicant sought access to the following:
On 5 August 2022, CHI wrote to the applicant stating that it was extending the time to consider his request due to “the volume of requests within the Department and [a]nnual [l]eave”. On 12 October 2022, the applicant applied for an internal review on the basis of a deemed refusal. On 18 November 2022, CHI issued a decision effectively part granting the applicant’s request. It provided a table of information relating to the first part of his request, although it only referred to cameras purchased since July 2019. CHI also stated that “having reviewed the records involved” concerning the second and third parts of the applicant’s request it had decided to refuse access under sections 15(1)(c) and 36(1)(b) of the FOI Act. It appears that CHI considered this to be an original decision as it made no reference to the applicant’s internal review request and stated that he could appeal the decision to CHI, rather than to this Office. In any event, on 25 November 2022, the applicant applied to this Office for 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 submissions made by CHI and the applicant. I have decided to conclude this review by way of a formal, binding decision.
In its submissions to this Office, CHI stated that it was an administrative error to rely on section 36(1)(b), as the records sought had not been collated or reviewed.
Accordingly, this review is concerned solely with whether CHI was justified in its decision to refuse, under section 15(1)(c) of the FOI Act, the applicant’s request in part on the grounds that the request was voluminous and would cause a substantial and unreasonable interference with the work of CHI.
It is important to note that section 22(12)(b) of the 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.
Section 14 – extension of time to consider an FOI request
While I am not required to consider the time extension applied by CHI for issuing a decision in this case, it is important to note that the circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific. Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, under section 14(1), it may extend that four-week period by up to four further weeks where it considers that:
“a) the request relates to such number of records, or
b) the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such, that compliance with section 13(1) within the four weeks specified is not reasonably possible.”
In this case the CHI informed the applicant that it had decided to extend the period for considering the request “due to the volume of requests within the Department and Annual Leave”. While I accept that CHI subsequently refused part of the request under section 15(1)(c) of the Act, there is no provision in the FOI Act to extend the time for deciding on an FOI request outside of the specific provisions detailed at (a) and (b) above. Furthermore, notwithstanding the extension applied by CHI in this case, I note that no decision issued by its extended deadline. I would expect CHI to ensure that, in future, an extension of time to consider an FOI request is only applied in circumstances which fall within the provisions of section 14 of the FOI Act.
Right of access to records
I note that in its decision to the applicant, CHI stated that it was established on 1 January 2019, when three Children’s Hospitals (i.e. Crumlin Children’s Hospital, Temple Street Hospital and Tallaght Hospital) and CHI’s Corporate Office “transitioned from four separate, independently governed entities into one single organisation”. It also stated that the “effective date for FOI legislation at CHI” was “1st July 2019”.
While CHI did not explicitly state that it considered relevant records held by it but created before 1 July 2019 to be outside the scope of the FOI Act, I note that the information in the table provided to the applicant solely relates to CCTV cameras purchased since July 2019.
Section 6(12) of the FOI Act provides that where a body becomes a public body after the passing of the FOI Act, the obligations under the FOI Act shall apply to that on and from a date that is not later than 6 months after it becomes a public body under the Act.
I note that Part 2 of the Children’s Health Act 2018 provides, at section 4, that the Minister shall, by order, appoint a day to be the establishment day for the purposes of that Act. Section 5(1) provides that “[t]here shall stand established on the establishment day a body, which shall be known as Children’s Health Ireland, to perform the functions conferred on it by or under this Act.” Under section 2, “establishment day” is defined as the day appointed under section 4.
I also note that under S.I. No. 505/2018 - Children's Health Act 2018 (Commencement of Certain Provisions) Order 2018, the Minister prescribed 3 December 2018 as the day on which certain provisions of the Children’s Health Act 2018, including Part 2 of the Act, came into operation. Accordingly, it seems to me that CHI became a public body for the purposes of the FOI Act on that date and pursuant to section 6(12) of the FOI Act, CHI’s obligations under the FOI Act commenced six months after that date, namely 3 June 2019.
Nevertheless, the fact that CHI’s obligations under the FOI Act commenced on 3 June 2019, does not mean that no right of access exists to records created before that date. The right of access is set out in section 11 of the FOI Act. Section 11(1) provides that subject to the Act, every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access. Section 11(4) provides that the records referred to in subsection (1) are records created on or after the effective date. Section 2 of the FOI Act defines “effective date” as meaning … “(c) in the case of an entity that immediately prior to enactment of this Act, was not a public body within the meaning of the Act of 1997, but is a public body within the meaning of this Act, 21 April 2008” (my emphasis).
I also note that under sections 35, 44 and 53 of the Children’s Health Act 2018, all records held by the three hospitals concerned were transferred to CHI on commencement of the relevant part of the Act of 2018, which was 1 January 2019 pursuant to S.I. No. 592/2018 - Children's Health Act 2018 (Commencement of Certain Provisions) (No. 2) Order 2018.
In simple terms, a right of access applies to records held by CHI that were created on or after 21 April 2008, subject to the exemptions in the FOI Act. It is also important to note that section 11(5) of the FOI Act provides for a right of access to records created before that date in certain circumstances. I would expect CHI to have regard to my comments above when processing future FOI requests.
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 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 requests for relevant records are processed efficiently and in line with the requirements of the FOI Act.
Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.
Section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether CHI was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
In its submissions to this Office, CHI stated that the request was acknowledged on 5 August 2022 and the applicant was informed that due to the high volume of requests received that it would be necessary to extend the period for considering his request by four weeks. It also informed him that he could expect a decision by 19 September 2022. It stated that it had released information relating to the applicant’s request for the number of CCTV cameras present at each of the four CHI sites and the number of cameras purchased since July 2019. CHI stated that it refused the remainder of the applicant’s request on the grounds that it was voluminous. It stated that it determined that it would be “unreasonable to request that this data be collated from three different sources/sites and submitted for review”, as the retrieval of the “number of records sought would cause a substantial and unreasonable interference on [staff] in Health & Safety, Facilities and Procurement”.
CHI stated that it refused the applicant’s request for datasheets/specs of CCTV cameras; invoices, contracts, tenders, service agreements, purchases, orders, procurement documents, offers etc., concerning products and services related to CCTV cameras, on the basis that collating the records sought would cause substantial and unreasonable interference with or disruption of work of the organisation.
In response to queries from this Office, CHI stated that it did not offer to assist the applicant with a view to amending the request for re-submission so that it no longer fell to be refused under section 15(1)(c). CHI also stated that it did not notify the applicant prior to issuing its original decision that his request was likely to be refused under Section 15(1)(c) of the FOI Act.
I note that, during this review, CHI indicated to the Investigating Officer that the applicant had made an earlier, broader request for access to similar records. CHI also indicated that it would provide a copy of the relevant correspondence in relation to that request to this Office for the purposes of this review. It seems to me that it may have been the case that CHI intended to argue that its interaction with the applicant in relation to the breadth of his request in the earlier case had some bearing on its decision in this case. However, CHI has not provided any documents or made any further arguments to this Office in this regard.
Having regard to the submissions provided to this Office by CHI during this review, I am satisfied that it did not properly engage with the applicant under section 15(4) in this case, and that it refused his request in part under section 15(1)(c) of the FOI Act without first providing him with an opportunity to amend the scope of his request. It appears as though CHI may consider section 36 to apply to some of the records containing the information sought. I have not seen the records in question as they were not collated by CHI in response to the applicant’s request. In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of CHI and to direct it to undertake a fresh consideration of the request. If CHI intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand. CHI should also consider the scope of the applicant’s request and my comments above in relation to any relevant records it holds which were created before July 2019.
Requests for records vs requests for information
For the benefit of the applicant, it is important to note 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. Furthermore, 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 FOI Act apart from the specific requirements of section 17(4) to extract records or existing information held on electronic devices.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of CHI to refuse the applicant’s request under section 15(1)(c) and I direct it to consider the request afresh.
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.