Case number: 180177
31 July 2018
On 25 January 2018, the applicant made a request for all information in relation to the response by HIQA to unsolicited complaints and concerns expressed in writing or orally or email etc during the calendar year 2017 in relation to older person's services, persons with disabilities and children's services. He also sought any internal reports or communications in relation to those unsolicited concerns. He specified that he was not seeking any personal information. On 26 February 2018, HIQA partially released the unsolicited complaints, while redacting a substantial amount of information from those records on the basis of sections 35 (information obtained in confidence) and 37 (personal information). The applicant applied for an internal review and noted that no reference was made in the decision to internal reports or communications. He also appealed the considerable redactions in the records that were partially released. An internal review decision dated 26 March 2018 stated that access to the records was being refused on the grounds of sections 15(1)(c) (refusal on administrative grounds), 27(12)(a) (fees and charges) and 30(1)(a) (functions and negotiations of FOI bodies).
The applicant subsequently applied to this Office for a review.
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 details of the above exchanges and to correspondence between this Office, HIQA and the applicant. I have had regard also to the records provided by HIQA and to the provisions of the FOI Act. I have also had regard to the guidance provided by the Central Policy Unit of the Department of Public Expenditure and Reform (CPU) in Guidance Note 6 (REV) on Fees and Charges (available at www.foi.gov.ie) relating to the procedures to be followed under section 27(12) of the FOI Act.
The applicant's request in this case sought access to information in relation to the response [emphasis added] by HIQA to complaints and concerns during 2017. The records collated by HIQA were in fact the actual complaints and not the responses to them. In my view, these records do not come within the scope of the applicant's request.
This review is concerned therefore with HIQA's refusal to grant access to any records containing the response by HIQA to complaints as well as any internal reports or communications in relation to those complaints. HIQA refused access to this information on the basis of sections 15(1)(c), 27(12)(a) and 30(1)(a) of the FOI Act.
HIQA relied on section 15(1)(c) of the FOI Act in relation to the applicant's request. Section 15(1)(c) states that granting the request would, by reason of the number 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 work (including disruption of work in a particular functional area) of the FOI body concerned.
HIQA stated that almost one thousand unsolicited concerns were included in the applicant's FOI request, and a considerable number of records would be associated with each of these concerns.
Section 15(1)(c) is subject to section 15(4) of the FOI Act. That section states that a public body shall not refuse a request that falls within section 15(1)(c) unless the requester has been assisted, or offered assistance, to amend their request for re-submission so that it no longer falls within section 15(1)(c). In this case, it appears that HIQA had some discussions with the applicant in relation to refining his request, but these discussions took place after the issue of the internal review decision on 26 March 2018. HIQA, in submissions to this Office, noted that efforts were made to assist the requester on 27 March 2018 and 29 May 2018, but both of these instances occurred after the decision had been made. HIQA also noted that in phone calls between 26 February 2018 and 7 March 2018 the applicant was advised that the size of the request caused problems for HIQA and attempts were made to assist him. Neither the exact date of these phone calls nor the nature of the assistance offered was recorded.
While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), it seems to me 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 not sufficient for the purposes of compliance with the section. In holding this view, I am 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. Further, it seems to me that before a body can refuse a request under section 15(1)(c), the body 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). I note HIQA's efforts to contact and meet with the applicant in order to address his concerns. Unfortunately most of these efforts were made after the decision to apply section 15(1)(c) had been made.
While I do not doubt HIQA's submission that phone conversations took place at some time between 26 February 2018 and 7 March 2018, I do not have evidence of the content of any such phone calls. Unlike the call of 26 March 2018 (following the issue of the internal review decision) which resulted in a detailed note of the phone call, there are no notes of any conversations that took place between 26 February 2018 and 7 March 2018. The basis for the assertion that attempts were made to assist the applicant during this period is not clear as the type of assistance offered was not recorded. While in some instances it may be acceptable that the offer of such assistance is made via telephone, it would be good practice to follow up any such conversation with an email or letter to the applicant in order to clarify that section 15(4) had been complied with. In the particular circumstances of this case, I am not satisfied that I have adequate information on which to find that the requirements of section 15(4) have been met.
This is not to say that HIQA has no valid basis for a claim that under section 15(1)(c), the number etc of records that would fall to be retrieved and examined in order to grant this request is such that unreasonable interference with its work would be caused. I make no finding on that issue. I find that section 15(4) was not complied with and that, therefore, section 15(1)(c) cannot be relied upon. A similar provision exists in relation to section 27(12)(a).
Section 27(12) allows an FOI body to refuse to process a request where the amount of a Search and Retrieval Charge (SRC) exceeds, or is likely to exceed, a prescribed amount, currently €700. This is referred to as the overall ceiling limit. The decision maker in this case estimated that the services of a number of staff members would be required for, at a minimum, 566 hours to efficiently complete the "search and retrieval" work. As the prescribed amount chargeable for each such hour is €20, HIQA estimated that the overall charge, exclusive of copying charges, would be €11,320, thereby exceeding the overall ceiling limit.
However, before a body can refuse to process a request on these grounds, it must:
The Commissioner takes the view that the entitlement to refuse to process requests where the estimated SRC charge exceeds, or is likely to exceed, the overall ceiling limit is an acknowledgement that there are limits on the administrative efforts required of FOI bodies in processing requests. On the other hand, the Commissioner also takes the view that safeguards for requesters include the obligation on an FOI body to assist the requester if s/he wishes to amend a request in order to reduce the cost and/or to ensure the request is processed.
CPU in Guidance Note 6 (REV) on Fees and Charges states that in order to refuse a request under section 27(12) procedures such as writing to the requester within 10 working days advising that his/her request is to be refused under section 27(12) and offering assistance in refining the request should be followed or the request cannot be refused on that basis. Such a letter should also request a specific deposit in the event that the request is refined and notes that if the letter does not issue within 10 working days informing the requester that his/her request exceeds the overall ceiling limit, the request cannot be refused on that basis and no fees can be charged.
In this case, HIQA did not inform the requester that the charge would exceed, or would be likely to exceed, the overall ceiling limit before the decision was made and, further, did not assist the requester to amend or limit the request in order to bring the charges to an amount equal to or less than the overall ceiling limit. As HIQA has not complied with these requirements, I find that section 27(12)(a) cannot be relied upon to refuse access to the request.
Section 30(1)(a) is a harm based provision that allows the head of a public body to refuse to grant a request if access to the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
In order to rely on this exemption an FOI body must identify the potential harm in relation to the relevant function that might arise from disclosure and, having identified the harm, consider the reasonableness of any expectation that harm will occur.
In this case, HIQA has not identified the relevant records or created a schedule of the records that come within the applicant's request as it has asserted that to do so would place a substantial administrative burden on the Authority which would result in the disruption of the work carried out by the body. Section 30(1)(a) can only be relied upon by reference to the harm that would arise from release of a particular record. As HIQA has not identified relevant records, I find that section 30(1)(a) cannot apply.
I hereby annul the decision of HIQA. I direct that it undertake a fresh decision making process in accordance with section 13 of the FOI Act and to notify the applicant of its new decision together with the statutory review rights etc. HIQA might check with the applicant whether he wishes to pursue this particular request before embarking on the making of a fresh decision since this will be confined to the scope of the request which gave rise to this review.
For the sake of clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the fresh decision begins within 5 working days of the expiration of the 4 week period available to HIQA for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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.