Whether the HSE was justified in its decision to refuse parts of the applicant's request for records generally relating to a number of recruitment campaigns undertaken by the HSE National Recruitment Service under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of its work
26 February 2018
The applicant submitted a broad and detailed request to the HSE on 03 August 2017, which consisted of 20 parts in total (2 parts were submitted as an addendum on 17 August, which for the purpose of this review I will refer to as parts 19 and 20 of the applicant's request), for records generally relating to a number of recruitment campaigns undertaken by the HSE National Recruitment Service (the NRS). On 23 August, the HSE part-granted the request, refusing certain parts of the request under section 15(1)(a) and section 15(1)(c). Section 15(1)(a) allows for the refusal of a request where the records sought do not exist or cannot be found while section 15(1)(c) allows for the refusal of a request where processing the request would cause a substantial and unreasonable interference with, or disruption of, the work of the body.
A protracted exchange of both email and telephone communications between the parties followed concerning, among other things, the requirement under section 15(4) for a body to assist or offer to assist a requester in amending a request so that it no longer falls to be refused under section 15(1)(c). The exchange culminated in the applicant proceeding with a request for an internal review of the HSE's original decision.
On 6 October 2017, the applicant sought a review by this Office of the HSE's deemed refusal of his internal review request. Following correspondence with this Office, the HSE issued its effective position on the request on 27 October 2017, in which it varied its original decision, releasing further information to the applicant, but affirming its decision to refuse other parts under sections 15(1)(a) and (c). On 08 November 2017, the applicant informed this Office that he wanted our review of the HSE's decision to proceed. In further email correspondence, he indicated that he was dissatisfied with the HSE's response in respect of parts 15, 16, 17 (third item), 18, 19 and 20 of his request.
In conducting this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.
Scope of Review
The HSE had initially refused parts 15, 16, 19 and 20 under both sections 15(1)(a) and 15(1)(c), while it refused parts 17 (third item) and 18 under section 15(1)(c). During the course of the review, the HSE confirmed that it wished to rely upon section 15(1)(a) only in respect of parts 15, 16 and 17 (third item), and section 15(1)(c) only in respect of parts 18, 19 and 20.
Ms McCrory of this Office subsequently informed the applicant of the details of the searches undertaken by the HSE to locate records coming within the scope of parts 15, 16 and 17 of his request. She informed him of her view that the HSE had carried out all reasonable steps to locate relevant records and explained that there was no requirement on the HSE to create a record in response to an FOI request, which the HSE had submitted would be required in respect of the relevant parts. In his response of 7 February 2018, the applicant indicated that he was satisfied with Ms McCrory's explanation and he withdrew his application for review in respect of parts 15, 16 and 17.
Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse access to parts 18, 19 and 20 of the applicant's request under section 15(1)(c) of the FOI Act on the ground that processing those parts of the request would cause a substantial and unreasonable interference with, or disruption of, the work of the HSE.
Analysis and Findings
As I have outlined above, section 15(1)(c) allows an FOI body to 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 the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c).
As I have also outlined above, a protracted exchange of both email and telephone communications between the parties in relation to the requirements of section 15(4) followed the HSE's decision to refuse certain parts of the original request under section 15(1)(c). However, the essential thrust of the applicant's argument is that the HSE failed to offer meaningful assistance to allow for the submission of a revised request which would not fall to be refused under section 15(1)(c).
While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is generally not sufficient for the purposes of compliance with the section. In holding this view, this Office is cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests. As such, this Office takes the view that before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4).
On the question of what constitutes reasonable assistance, the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
I might add that while there is an onus on FOI bodies to assist, or at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type and nature of records held. Nevertheless, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.
I note in this case that when the applicant first brought the attention of the HSE to its failure to meet the requirements of section 15(4), the HSE acknowledged the fact that he appeared to remain open to discussing a possible amendment of his request and it asked the applicant to contact a particular member of staff (the HSE's email of 5 September 2017 to the applicant refers). However the staff member concerned informed the applicant that she had no role in the matter and referred him back to the decision maker.
Following a further exchange of emails, it appears that the applicant had a telephone conversation with the decision maker and another official on 15 September 2017 wherein, according to the applicant, he indicated that he was willing to alter or reduce the scope of some of his requests and outlined what he believed to be an agreed altered request, including part 18. He stated that he subsequently received an email from the decision maker on 22 September 2017 which contained some additional information relating to his request but was informed that the email had issued in error and would be withdrawn. As he received no further response from the HSE, he subsequently sought a review by this office of the HSE's decision on his request.
In his application for review, the applicant stated that he had offered to reduce the scope of part 18 of his request but had received no response, and that he had received no assistance whatsoever in relation to parts 19 and 20. In its submission to this Office, the HSE pointed to an email issued by the applicant following his telephone conversation of 15 September 2017 which he described as quite helpful and reassuring as evidence of how it offered or provided assistance. While I am not aware of the precise details of the telephone conversation that took place, it appears that the HSE did not respond to the applicant's suggestion regarding part 18 and that it made no offer to assist the applicant in connection with parts 19 and 20. In my view, the evidence provided by the HSE does not provide a basis on which I can find that it offered reasonable assistance in this case.
Section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources. The original request was, as I have described above, both broad and detailed. The request sought numerous records relating to three recruitment campaigns conducted by the NRS, including specific details of how these campaigns were carried out and how candidates were assessed.
However, I am satisfied that the HSE did not properly engage with the applicant under section 15(4) despite repeated attempts by the applicant to come to an agreement with it on an amended request. Having regard to the exchanges of correspondence between the parties and the lack of engagement with the applicant as described above, I find that the HSE did not comply with the requirements of section 15(4) in refusing parts 18 to 20 of the applicant's request under section 15(1)(c).
Accordingly, I deem it appropriate to annul the HSE's decision in respect of parts 18 to 20 and to direct it to make a fresh, first instance decision in respect of those parts. In making that decision, if the HSE wishes to rely on section 15(1)(c), it must have regard to its obligations under section 15(4).
Having regard to the nature of the information sought at parts 19 and 20, I would make the following comment for the information of both parties. While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in this case in respect of parts 18, 19 and 20 of the applicant's request. I remit those parts of his request back to the HSE for fresh consideration.
Right of Appeal
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.