Case number: OIC-123331-N4P6C7
19 December 2022
The applicant is a staff member of the NAS South. He submitted an incident report to NAS in 2021. On 5 November 2021, he made a 6 part FOI request for the following information;
1. A copy of the current NASBS003 policy, and any other related procedure, which describes how the Officer/staff member affected by this policy/related procedure can determine and subsequently notify what call-outs they will and will not respond to,
2. A copy of the procedure for ensuring continuity of availability for call outs where someone is otherwise engaged in official business and where others may still be potentially available to assist me,
3. With respect to parts 1 and 3, they should include the name of who signed off on both these procedures, their commencement date and the time of day/day of week/locations they apply to,
4. A copy of the document showing when parts 1 and 2 were circulated to me as part of advising all NAS staff of its existence,
5. A copy of the document listing the clinical equipment carried out on the vehicle involved in my incident report and the clinical grade of the person driving it and their current status on the PHECC Register,
6. A list of all vehicles across the NAS South that are currently allocated to staff who fall under NASBS003 and related procedures and the number of call-outs they performed so far this year and the times/dates of same.
The applicant also stated that he wished to make a “subject access request under GDPR” for a copy of all documents and transcripts of any digital recordings that showed when and how his incident report was investigated and the resulting outcome to date.
On 22 December 2021, the NAS released some records to the applicant in respect of parts 1-3 of his request. It refused part 4 on the basis that no such record existed (section 15(1)(a) refers). In relation to part 5, it said that it did not hold the records regarding the staff member’s current status on the PHECC register as the PHECC was “a separate distinct governing body”. It refused access to records relating to part on the grounds that section 15(1)(c) applied, i.e. that complying with the request would cause a substantial and unreasonable interference with or disruption to the work of the NAS. In relation to the final part of his request, which it referred to as part 7, the NAS released one record.
On 10 January 2022, the applicant made an internal review request in relation to the NAS’s decision on parts 5, 6 and 7 of his request. In relation to part 7, he noted that his subject access request had been dealt with under FOI. He also indicated that he was of the view that additional records should exist relating to this part of his request. On 8 February 2022, the NAS varied its decision to refuse access to the remaining information at parts 5 and 6 on the grounds that section 37(1) and 15(1)(a) applied respectively. While it explained why it dealt with part 7 of his request under FOI, it did not address the matter of additional relevant records. On 5 May 2022, the applicant applied for a review to this Office of the NAS’s decision on parts 5, 6 and 7 of his request.
During the course of this review, the NAS indicated that it was also relying on section 15(1)(c) of the FOI Act to refuse access to additional records in relation to part 6 of the applicant’s request
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 correspondence between the applicant and the NAS as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the content of the records concerned.
During the course of this review, the applicant indicated he wished to pursue part 6 of the request only. Therefore, this review is concerned solely with whether the NAS was justified in its decision to refuse part 6 of the applicant’s request, under sections 15(1)(a) and 15(1)(c).
In his request for internal review, the applicant queried why no additional records relating to the NAS’s investigation following his incident report had been located. He stated that he did not believe that the matter remained un-investigated “from its submission” on 28 October 2021 “to the outcome of the GDPR request” on 22 December 2021. It is important to note that the FOI Act provides for a potential right of access to records that exist at the date of a particular request. In this case, this means that the NAS could only consider relevant records which existed on 5 November 2021. While this review is not concerned with part 7 of his request, it has been explained to the applicant that it is open to him to make a new FOI request for any records relating to the investigation created after this date.
Section 15(1)(a) – whether records exist and Section 17(4) – extraction of information held electronically
It is important to note at the outset that, 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. 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, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under 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.
In its internal review decision, the NAS stated that the type of record sought in respect of part 6 of the applicant’s request was “created in arrears for governance reporting purposes”. In correspondence with this Office, the NAS stated that it was “legally obligated to provide details of call-outs in arrears for those Officers who have a vehicle assigned for full hours for submission to the Revenue Commissioners for BIK (Benefit in Kind) calculations purposes” where applicable. It stated that this information was usually requested by the Revenue Commissioners in October/November in respect of the previous calendar year. However, the NAS also stated that this report had not been requested since 2019 “due to the COVID pandemic”.
During the course of this review, the Investigating Officer asked the NAS to provide details of the steps required to create the record sought by the applicant. It said it would take the relevant unit half a day to create the record sought. The NAS said that it would initially have to request a list of call signs/vehicle identification. It also stated that a query could be put into the relevant database using information from that list, which would identify all call outs that the vehicles responded to during the relevant time period. It said that this information would be extracted to Excel and that the time and date of each call could be identified by the use of pivot tables. The NAS stated that the process could be completed as one query and would not require individual queries per vehicle. It stated that in order to run the query concerned, it would require the vehicle list. As part of its response, the NAS provided a list of 20 vehicles to this Office which appear to fall within the scope of the applicant’s request. However, the NAS did not indicate whether it intended to release this record to the applicant.
Essentially, the NAS’s position appears to be that while it is usually required to generate the report sought (or a similar report) for governance purposes, it does not currently hold a record setting out the number/details of call-outs performed by the relevant vehicles on the dates in question. In other words, that the record sought does not exist, under section 15(1)(a). However, it is clear that the list of vehicles exists as it was provided to this Office during this review. It also seems clear from the NAS’s submissions that once it has the list of vehicles, it can create the report sought by taking reasonable steps to extract the records concerned, by using facilities for electronic search and extraction that existed on the date of the applicant’s request and were used by it in the ordinary course.
In the circumstances of this case, I am not satisfied that the NAS has justified its decision to refuse access to a record containing the information sought by the applicant at part 6 of his request on the basis that it does not exist under section 15(1)(a) of the FOI Act. I find, therefore, that section 15(1)(a) does not apply. However, this is not the end of the matter. I must also consider whether the NAS was justified in refusing to release records on the basis of section 15(1)(c) 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 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.
However, section 15(4) of the FOI Act 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.
Based on the correspondence provided to this Office, it is clear that the NAS did not engage with the applicant in accordance with section 15(4) to offer him assistance in amending the request so it no longer fell under section 15(1)(c). I find, therefore, that the NAS did not comply with the provisions of section 15(4) of the FOI Act in this case and cannot rely on section 15(1)(c) to refuse part 6 of the request.
However, considering the content and context of the record, I do not consider it appropriate to simply direct release of the information where other mandatory exemptions may apply, such as section 37(1) of the Act. In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the NAS’s decision and to direct it to undertake fresh consideration of part 6 of the applicant’s request. If the applicant is unhappy with the NAS’s fresh decision, it will be open to him to apply for an internal review of that decision and, subsequently, to apply for a review by this Office.
I would like to remind the NAS that if it intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand. I would encourage the NAS to examine the relevant guidance note and previous decisions on our website www.oic.ie its decision-making.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the NAS’s decision to refuse part 6 of the applicant’s request under sections 15(1)(a) and 15(1)(c) of the Act. I direct it to undertake a fresh decision making process in relation to this part of the applicant’s 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.